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29 September 2015 | Susan Gatford, Owen Dixon Chambers, Melbourne

Revenge porn makes new law

Australian courts and Australian parliaments appear equally reluctant to create a generalized tort of invasion of privacy in Australia. This is despite the increasing use of social media, including Facebook, which has created new ways for an individual's privacy to be invaded.

Revenge porn -- the public posting of intimate photos, often shared privately in happier times -- is one such example.

The absence of a formalized legal response has left complainants with a limited range of remedies. Some have approached social media sites directly seeking their cooperation in taking down offending material, and many sites are now developing formal policies in this area.

Such policies do not, however, have the same force as a legal cause of action, and do not generally provide any remedy against the wrongdoer. In the face of continued legislative inaction, Australian courts, while remaining reluctant to create a tort of invasion of privacy per se, are demonstrating a willingness to expand the existing equitable action of breach of confidence into the privacy space.

They are also prepared to award both aggravated damages and damages for emotional distress if they consider that the circumstances in the individual case warrants such a response.

Key points

  • There is no tort of privacy in Australia, but the equitable action for breach of confidence is moving to fill the void.
  • In addition to injunctive relief, both aggravated damages and damages for emotional distress are available.
  • The quantum of damages available in personal injuries cases may be a useful guide to the award of damages for emotional distress in breach of confidence cases.
  • There is no need to prove any psychiatric injury in order to obtain a damages award.

Conclusion

The courts have generally been sympathetic to individuals who have come before them seeking redress for invasions of their privacy. Without expressly filling the gap left by legislative inaction and creating a tort of privacy per se, judges have been prepared to extend the breach of confidence remedy to fashion a remedy.

It is impossible to say whether such developments lend support to the creation of a statutory tort of privacy or whether the legislature will instead consider that such a response by them is unnecessary in light of decisions like Giller (1) and Wilson (2).

Either way, however, if you meet a person aggrieved by what they consider to be an invasion of their privacy as well as checking the policy of the social media site involved consider the applicability of an action for breach of confidence.

(1) Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236
(2) Wilson v Ferguson [2015] WASC 15

Note: This is an extract from Privacy Law Bulletin, September 2015, Volume 12 No 9