Love rats, beware. If you decide to humiliate your ex by showing videos or photos of your ex in a compromising position, you may be liable for damages for breach of confidence. This is a result of the Victorian Court of Appeal’s decision in Giller v Procopets [2008] VSCA 236, in which it was decided that damages could be awarded for a breach of confidence where the breach only caused “mere distress” not amounting to psychiatric injury.
The case raised multiple issues arising from the de facto relationship between the parties, including constructive trusts over the marital home and damages for assault. The breach of confidence issue arose because Mr Procopets had taken video footage of himself and Ms Giller during their sexual encounters prior to the breakdown of the relationship. After the relationship ended, Mr Procopets took the video to various family members and friends of Ms Giller, and attempted to show the video to them. In one case, he went brought a VCR player to the house of the mother of Ms Giller’s friend so that he could show her the video. He also telephoned Ms Giller’s boss and said that he had a video of Ms Procopets using her job to get sexual favours. Finally, he showed the video to his subsequent partner.
The question is how the civil law should respond when a defendant commits an act which is intended to mentally harm the plaintiff, but the plaintiff does not suffer a psychiatric illness in response. Typically, mental harm falling short of psychiatric illness is not compensable (particularly in the law of negligence).
Obviously, the criminal law has penalties which respond to this kind of behaviour, and in the present case, Mr Procopets was gaoled for his conduct. But should we also require Mr Procopets to compensate Ms Giller for harm caused? That harm did not actually consistute a mental injury, but it could be considered to be a “moral injury” (borrowing from Jean Hampton’s retributive theory) because Mr Procopets belittled Ms Giller’s human worth and standing. Further, should we impose punitive damages to punish Mr Procopets for his acts, and to deter others from committing similar acts?
The trial judge found that there was a confidential relationship between the parties and that it was breached, but that Ms Giller could not obtain damages. However, the Court of Appeal was prepared to award damages for “mere mental distress” caused to Ms Giller as a result of Mr Procopets’ breach of confidence. There was some quibble over the nature of the award as to whether damages could actually be awarded in Equity and, if so, in what form. Neave JA delivered the principal judgment. She suggested that damages for breach of confidence causing “mere distress” could be either equitable compensation or damages pursuant to Lord Cairns’ Act. With regard to the latter, it was merely necessary that an injunction could have been sought. Ashley JA noted that there was no reason why the concept of “equitable damages” could not be used in this context.
Neave JA then concluded that damages for mental distress could be awarded for breach of confidence. She relied on the English case law in Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, Douglas v Hello! Ltd [2006] QB 125 and De Taranto v Cornelius [2001] EWCA Civ 1511. The first case concerned a breach of confidence against the supermodel, Naomi Campbell, after the Mirror Group Newspapers published a story and a picture relating to her attendance at Narcotics Anonymous in breach of its duty of confidence. The second involved the wedding of Catherine Zeta-Jones and Michael Douglas, and unauthorised photographs taken by Hello! magazine in breach of confidence. In both cases, the Court found there was a breach, and assumed that damages could be awarded for mental distress falling short of psychiatric injury. In De Taranto, Mrs Cornelius had sought psychiatric and legal advice in relation to an employment matter. The psychiatrist, Dr De Taranto, sent the report to Ms Cornelius’ GP, solicitor and her hospital without Ms Cornelius’ consent. Ms Cornelius was awarded damages for mental distress caused by a breach of confidence. As the Australian law has no decision on point, the Court of Appeal followed the lead of the UK cases.
The next question was whether punitive or aggravated damages should be awarded. Punitive damages seek to punish the defendant for conduct which is particularly outrageous. The Court found that punitive damages were not available for breach of confidence, particularly where the defendant had already been punished by the criminal law (see NSWCA in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10).
However, Neave JA (with whom Maxwell P agreed) was prepared to award Ms Giller aggravated damages for breach of confidence. Such damages are said to compensate the plaintiff for the harm done when a wrongful act is aggravated by the manner in which the act was performed. Ashley JA was also prepared to award aggravated damages, but in a lesser measure.
The other salient issues were whether or not Australian law recognised a tort of invasion of privacy and a tort of intentional infliction of mental harm.
Neither Ashley JA nor Neave JA (with whom Maxwell P agreed on this issue) found it necessary to decide whether there was a tort of invasion of privacy, although Neave JA noted that the recent Law Reform Commission report had recommended that this tort should be developed in Australian law (post on the Report here).
With regard to a tort of intentional infliction of mental harm, the approach of the three judges diverged. Maxwell P was of the opinion that a tort of intentional infliction of mental harm should be recognised in Australian law, because otherwise there was a gap in the law. His Honour noted that it was impossible to draw a clear distinction between psychiatric injury (which is generally compensable) and “mere distress” (which is not compensable). By contrast, Ashley JA was of the opinion that it was not open to the Court of Appeal to develop such a cause of action. Neave JA did not find it necessary to decide whether there was a tort of intentional infliction of harm. She noted both the pros and the cons of such a tort, and ultimately remained unconvinced that the common law should fill the gap, concluding that it was a matter for the legislature. On balance, it appears that a majority of the Court was against the establishment of a tort of intentional infliction of mental harm.
It will be interesting to see how this law develops. In this computer age, there is an increased capacity for a person to swiftly disseminate confidential information to the public, regardless of whether one is a media outlet or not (take, for example, the recent case involving compromising photos downloaded from a lost mobile phone). Perhaps the trend established in this case will make people think before they show information to others.
15 Comments
It’s an interesting decision, isn’t it?
However all of this may be overtaken (and the tort of privacy may never have a chance to blossom) if the Federal Government enacts serious privacy laws in Australia as it may well do.
This seems to me to be a classic case of easy cases making dubious law.
You will see that in all but the first, interlocutory decision by Kellam J at first instance, Mr Procopets represented himself. Gillard J commented that he was a capable cross-examiner, but he had held against him on appeal matters where he had failed to cross-examine the plaintiff’s witnesses which strike me as classic errors of the non-lawyer (you can be capable of asking questions but still not entirely up to speed on Brown v Dunne), and as a matter of legal argument I think it must be assumed that all the novel conclusions were reached without a legally trained (as opposed to factually knowledgeable) contradictor.
I’m only guessing here, but what are the odds that Ms Giller had the benefit of a grant of legal aid? Even if she didn’t, I’m prepared to hazard a further guess that her legal representatives were acting on spec which is really just as good as a grant of aid, while Mr Procopets, who had property and was seeking to defend it, is unlikely to have been able to obtain similar representation.
Moreover, because Mr P represented himself, Justice Neave (for example) felt free to draw further factual conclusions about him based on his conduct of the appeal. Of course, she didn’t see Ms Giller. Justice Gillard had seen both of the parties in action. For that reason, I don’t think Neave J’s upward reassessment of the equitable damages from Gillard J’s estimate of the tortious damages in relation to the videotapes shown to various people (not to the subsequent lover – that does not on my reading appear to have been the subject of any award) seems quite unjustified.
There are other points with which I would take issue in this judgment, including the fairly casual transposition of Family Law Act notions of property adjustment into de facto relationships claims – though this has been well and truly overtaken now by statutory reform, so is probably just spilt milk.
I’m not seeking to defend Mr P, but cases where somebody has behaved really badly are not always the best occasions for the development of legal doctrine, and in this I’m in agreement with Barrett J on A-G v Blake, even if not to the full extent of his anti-fusion purism in relation to that particular case.
Fascinating stuff, LE — although his lack of representation does worry me. I’ve been reading some material recently from the Cato Institute on what happens — particularly to property rights — when the law is priced out of the reach of the majority of people.
As Paul says, if a tort of invasion of privacy is enacted statutorily, it could get even more interesting. At the moment Pommy press barons are running around in an utter flap, as it’s constricting their ability to get at some of the jucier stories. That said, the public and the Commons aren’t on their side — but for very different reasons.
Indeedy, this was the ad sent around English law schools for the Times law awards this year:
Interesting observations, Marcellous. I was going to comment in the post on the negative inferences drawn about both Ms Giller and Mr Procopets by Gillard J. It seems that neither was a particularly convincing witness.
I do worry about self-represented litigants being at a disadvantage (even intelligent ones who make a good fist of cross examination). It’s still not the same as getting a professional to represent you. And, as you say, in an appeal, the appeal judges may form a view about the credibility of the litigant in person (consciously or unconsciously), whereas the other party will not be seen.
Personally, I would have preferred Ashley JA’s approach to damages than the majority’s. I agree that it was not appropriate to upwardly revise damages to the extent done so by Neave JA.
I am a fan of Blake (as you know), but I’d agree that cases where the defendant has done something morally dubious are the easy ones. I was trying to think of some more borderline situations which would lead to problematic decisions in relation to this doctrine. What about a friendship which broke down after a friend disclosed something sensitive but not so clearly private to others?
SL, I’m not surprised about the UK press barons being worried. There was an outcry in the press here in relation to the ALRC’s proposed statutory tort of invasion of privacy for exactly the same reasons (although it was dressed up as freedom of speech).
But as this case and De Taranto show, there is also room for the operation of doctrines to cover breaches of confidentiality where ordinary people are concerned.
What are the different reasons for which the Commons and the public are not on the side of the press barons?
Damn, I’ve forgotten how to get graphics to show in the comments.
Ah, alas, I’ve never known, so I’m no help at all!
Sorry, can’t remember and I have stuff to do, so it’ll have to wait.
errata:
Neave JA; quite justified.
LE:
re your response, I think it was the pictures which were the problem.
I doubt if there would have been a cause of action contemplated if, for example, Mr P had just given even a detailed verbal description of what he had been up to with Ms G (and she with him), and honestly, you must surely expect that people will say things like that, at least to their subsequent lovers, so that in that regard, what you did (as opposed to what you looked like in a video of your doing it) may not have the necessary degree of confidentiality, though mass publication would be a different matter – as in Argyll v Argyll. I assume that in Australia such confidentiality would not now be confined to married couples, but what about more casual encounters? What about the mutual expectation of confidentiality about the identity of those who attend a sex-on-premises venue?
Ms P might have had a claim in defamation like Andrew Ettingshausen’s, though both of the imputations which succeeded in that case relied on the premiss (a bit like the Hogan TPA claims) that ordinary readers would presume that the matter was published with his permission, which could hardly be the case here, and that in turn really relied on the mass-publication aspect. And I don’t know if it is a good idea to try to rescue one dodgy decision with the assistance of another.
Ms G could certainly have sued for Mr P’s other defamatory statements about her (though if she had a grant of legal aid that definitely wouldn’t have extended to such a claim) and showing the videos might have aggravated the damages.
The problem with law being made in cases where there is a self-represented party, particularly one which loses, is less that the self-represented party is lumped with the outcome than that we all are lumped with it as a precedent. Self-represented litigants are just the extreme cases as this also arises from disparities in competence of lawyers.
The more I think about this case, the more questionable it seems. I’m tending to the view that bad behaviour + dirty pictures = bad law.
Remembered at last, apologies for the faffing.
MPs tend to see this as a way of cutting the 4th Estate down to size, and seem to be supporting it for quite cynical reasons. The general public, however, seem genuinely to dislike at least some aspects of the invasion of privacy made routine in the trashier mags and tabloids. Sales have been dropping steeply of late, and the response — until the Courts stepped in — was ever more trashy stories. I must admit I haven’t seen any figures since the Mosley case (and subscription numbers are often massaged upwards, too), so it will be interesting to see what happens in the long run.
Rather than privacy, given the nature of the video he was hawking about surely they could have done him for obscenity?
Marcellous, your comments are very thought provoking. What if Mr P had merely given a graphic account of his sexual encounters to Ms G’s boss? I agree, it was probably the pictures which made a difference.
The parties here were not married, but had an on-again, off-again de facto relationship. They had two children together, but particularly toward the latter end of the relationship, they did not live in the same household (which contributed to the difficulties in establishing a CT). So I’m presuming that the duty of confidentiality would apply to married couples, de factos and same sex couples.
The casual partner question is an interesting one. What if Mr P and Ms G had just had a one night stand? Would there be the same expectation of confidentiality? One generally assumes that sexual encounters are private, but there might not be the same presumption in all circumstances (eg, at an orgy).
The more you make me think about this, the more I think it might not be a good case either.
SL, sales for gossip magazines and the like are falling here too. I don’t really like the notion of the paparazzi poking their noses into the private business of celebrities. Who cares if they get trashed or have affairs or wear ugly outfits? Just let ‘em go about their business say I. It’s only newsworthy if someone has put themselves up as a pillar of morality and is then proven to be a hypocrite.
DEM, they did gaol him for breaching an intervention order. I guess they could have also charged him under s 17 of the Summary Offences Act (which provides it is an offence to commit obscene or indecent behaviour in public).
Ms Giller would not be able to get damages as a result of Mr Procopets being charged with obscene behaviour in public. This, presumably, is why she went down the breach of confidence path!
Plus, I suspect she also wanted revenge. The trial judge noted at [68] of his judgment:
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