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Privacy Awareness Week: no enforceable right to privacy in Australia; revenge porn breaking new legal ground

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A leading defamation and privacy lawyer has warned of a legal shortfall for some victims of privacy breaches in Australia, to mark Privacy Awareness Week 2017 (15 – 21 May).

The event is an annual initiative of the Asia Pacific Privacy Authorities forum and this year’s theme is ‘Trust and Transparency’.

Slater and Gordon Senior Associate Jeremy Zimet said many people are not aware that there is no enforceable ‘right to privacy’ in Australian civil law.

“Unlike the UK and the US, there is no cause of action for breach of privacy in Australia, which means victims are unable to sue for damages under this doctrine,” Mr Zimet said.

“However, we are seeing a new trend caused by the surge in revenge porn cases.

“Instead of ‘breach of privacy’, revenge porn victims have successfully claimed ‘breach of confidence’ actions, which protects information that can be considered confidential.

“Traditionally, breach of confidence has only been applied very narrowly, but courts have recently been willing to expand its application to instances of revenge porn.

Mr Zimet said there are three essential elements to establish a breach of confidence action.

  1. The information (or image) must be of a ‘confidential nature’
  2. There must be an obligation to keep the information (or image) confidential when it is communicated or obtained
  3. The information (or image) must be used in an unauthorised way.

Mr Zimet said this cause of action was applied to revenge porn by the WA Supreme Court in 2015.

“The leading case in this area is Wilson v Ferguson, where a man uploaded 16 explicit images and two videos of his former partner to Facebook after she ended their relationship,” Mr Zimet said.

“The court found her confidence had been breached and awarded nearly $50,000 in damages.

“However, it is important to note that she specifically told her partner to make sure no one else saw the images or videos when they were shared.

“If she had not specifically created this ‘obligation of confidence’, it is possible the case would have been decided differently, but a court could also find there was an implied and unspoken obligation to keep the images private, due to their explicit and personal nature.

“It is a developing and very grey area of Australian law, but if a higher court followed or expanded this case, or if legislators turned their minds to the issue, it could provide a much needed legal remedy for victims of revenge porn in Australia.”

Leading Australian revenge porn case Wilson v Ferguson (WA Supreme Court)

Caroline Wilson and Neil Ferguson were both fly-in fly-out mine workers in WA. They worked at the same site in 2011 and were in a relationship for two years.

During their relationship, Caroline took naked photos and videos of herself on her mobile phone. Caroline had sent Neil some of the photos and one day Neil picked up her phone when she had left the room and emailed the videos to himself. Caroline had not given him permission, but asked him to make sure no one else saw the videos – they were just for him.

In 2013, Caroline suspected Neil was cheating on her and sent him a text message saying she wanted nothing to do with him. Exactly five hours and 31 minutes later, she received calls and messages from friends asking if she’d seen what Neil had posted on social media.

Neil posted 16 of the explicit photos and two videos Caroline had shared with him on Facebook with the comment “Happy to help all ya boys at home… enjoy!!”.

Neil posted another note later that day saying “let this b an effing lesson”.

Neil had 300 Facebook friends, many of whom worked with Caroline. Those friends were able to download and share the photos and videos. Neil messaged Caroline saying “Facebook photos will be out for everyone to see when I get back you slappa, can’t wait to watch you fold as a human being”. Caroline begged him to take them down, which he did, but only several hours later.

Caroline could not work for months and took leave without pay. She was humiliated and suffers from ongoing anxiety. The WA Supreme Court found Caroline’s confidence had been breached and awarded her $48,404 in damages and also ordered that Neil had to pay her legal costs.