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Focus: Jane Doe v ABC: a new privacy action?

13 June 2007

In brief: Judge Felicity Hampel in the Victorian County Court recently held that the general law now offers protection to 'private information' under both the equitable action of breach of confidence and a new tort of invasion of privacy. Special Counsel Karin Clark, Lawyer Maree Norton and Articled Clerk Adam Butt consider the extent this groundbreaking decision, if upheld, is likely to increase an individual's right to control the publication of 'private information' about themselves. 

How does it affect you?

  • The Victorian County Court has ordered the ABC to pay $230,000 to a woman whose name was reported as part of a radio news item about the sentencing of her husband, who was convicted of her rape.
  • In addition to finding a breach of confidence, the court said the relevant breach of privacy was 'an actionable wrong which gives rise to a right to recover damages according to the ordinary principles governing damages in tort.'
  • This case may expose journalists, media organisations and other publishers to a new range of claims for breach of privacy. Whether it will in fact do so has been widely debated. In assessing the likely impact of the case, it is important to keep in mind factors such as the particular circumstances of the case and that the plaintiff also succeeded on two other grounds.
  • Media organisations and publishers who are considering the implications of this case should be aware that the development of a new tort of privacy is also being considered by other bodies in Australia such as the Australian Law Reform Commission and the NSW Law Reform Commission.

Facts

In 2001, the plaintiff, Jane Doe, was attacked and raped by her estranged husband, YZ.1 YZ was convicted of two counts of rape and, on the day of his sentencing, the ABC broadcast sufficient information to reveal Ms Doe's true identity in three separate radio news bulletins (including, in one, Ms Doe's actual name). Under section 4(1A) of the Judicial Proceedings Reports Act 1958, it is an offence to publish information identifying a victim of a sexual offence in such circumstances. Ms Doe sought relief against the ABC and two of its employees for breach of statutory duty, negligence, breach of privacy and breach of confidence.2 Judge Hampel upheld each of these claims and awarded Ms Doe $85,000 in general damages for post-traumatic stress disorder and special damages of $118,332 and $5,858 for past loss of earnings and medical expenses (respectively). Ms Doe was also awarded $25,000 for the hurt, embarrassment and humiliation she suffered as a result of the broadcasts.

Something old, something new...

Courts in other common law jurisdictions have, in recent times, sought to protect individuals against breaches of privacy through both the adaptation of equitable notions of breach of confidence, and the development of a tort of breach of privacy.

In the United Kingdom, the traditional action for breach of confidence has been extended to protect private information about an individual. Traditionally, equitable obligations of confidence have arisen in the context of certain relationships (for example, employment or commercial relationships) and have been largely associated with protecting commercially sensitive information. The 'extended' action of breach of confidence imposes obligations of confidence in respect of personal and private information, regardless of the relationship between confider and confidant. Key to the development of the extended action for breach of confidence has been the impact of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which has been incorporated into UK law under the Human Rights Act 1998 (UK). The reformulated action seeks to strike a balance between the right to privacy and the right of freedom of expression.

In contrast to the UK approach, New Zealand courts have recognised a tort of privacy that provides relief for an individual where publicity is given to private facts about them in circumstances where the publicity would be 'highly offensive to an objective reasonable person'.3 In deference to the interests of freedom of expression, the fact that the publication of private facts is a matter of 'legitimate public concern' provides a defence to the tort.

In comparison to the approach of courts in the UK and NZ, Australian courts have been slow to develop a doctrine for the protection of private information. In April 2002, we reported on the High Court's decision in ABC v Lenah Game Meats.4 In that decision, the High Court did not recognise a cause of action for breach of privacy under Australian law, but left open the possibility that such an action may be developed in the future. Apart from a decision by Justice Skoein of the District Court of Queensland in Grosse v Purvis,5 Australian courts have until now not taken up the High Court's invitation to develop an action for breach of privacy.6 In Jane Doe, however, Judge Hampel has however seized the opportunity to extend the protections against unauthorised disclosure of private information that are available under Australian law. 

Some things borrowed...

Judge Hampel upheld Ms Doe's claims both in respect of breach of confidence and breach of privacy, and in doing so borrowed from both the UK and NZ approaches.

Breach of confidence

Judge Hampel cited with approval the approach of UK courts, and Chief Justice Gleeson in Lenah Game Meats, to the extended breach of confidence action referred to above. Judge Hampel agreed that the concept of breach of confidence has evolved from its original focus on confidential relationships, to one centred on human autonomy and dignity.7

Judge Hampel interpreted Chief Justice Gleeson's formulations in Lenah Game Meats to mean that the law of breach of confidence now provides relief if information is published that would be generally regarded as sufficiently personal or confidential to give the relevant individual an expectation that it would not be disclosed or published without their consent.8 Put another way, private information is information for which a person has a reasonable expectation of privacy, and of which they are entitled to control disclosure. 

The information that was disclosed in this case concerned the plaintiff being subjected, against her will, to criminal acts of a sexual nature. Furthermore, the Judicial Proceedings Reports Act prohibited publication of the information (more precisely, the publication of Ms Doe's identity). Based on these considerations, Judge Hampel was satisfied that Ms Doe had a reasonable expectation that the information was (and would remain) private and that this in turn warranted the imposition of obligations of confidence on those who possessed the information. 

Tort of invasion of privacy

In addition to her finding that there was an actionable breach of confidence, Judge Hampel also held that this was an appropriate case in which to recognise that there should be a tort of breach of privacy In doing so, Her Honour acknowledged that the development of a privacy tort was intertwined with the development of breach of confidence, and that both actions are premised on a recognition of the value of privacy and the protection that should be afforded to it. 

Judge Hampel did not consider it appropriate for her to formulate an exhaustive definition of privacy, which she acknowledged is an 'imprecise concept'. In this case, the actionable wrong arose from:

...the publication of personal information, in circumstances where there was no public interest in publishing it, and where there was a prohibition on its publication. In publishing the information, the defendants failed to exercise the care which could reasonably be required of them to protect the plaintiff's privacy and comply with the prohibition on publication imposed by [the Judicial Proceedings Reports Act].9

 

Something due...?

While this decision is being appealed, there has been much speculation about the extent to which it will expose media organisations and other publishers to a new range of claims. Other questions that have been the subject of debate are whether the decision will restrain the freedom of the press to publish what it considers newsworthy, and the extent to which this represents good public policy.

In assessing the likely impact of the decision however, it is important to keep in mind the particular circumstances of the case, the fact that it concerned the privacy a victim of crime (rather than a celebrity or well-known public figure), the obviously highly sensitive nature of the information and the difficulty in arguing that the publication could have served any public interest. It is also significant that the plaintiff also succeeded on two other alternative grounds, breach of statutory duty and negligence. As a result, it could be argued that the statements made about the extension of the right to privacy and the action for breach of confidence were not essential to the plaintiff's success in this case. 

Breach of statutory duty

As noted above, the ABC owed a statutory duty to the plaintiff under the Judicial Proceedings Reports Act not to identify her as a victim of a sexual assault. The judge found that this was sufficient in itself to make the ABC civilly liable to Ms Doe for the injury she suffered as a result of the breach, based on the well established principles governing the private right of action for a breach of statutory duty.

Negligence

Judge Hampel also found that the defendants owed Ms Doe a duty of care not to publish information which would identify her, as 'she had a legitimate expectation...that her identity as a victim of sexual assault would not be published, and there was a reasonably foreseeable risk that if they did publish identifying information, she would be injured.' The ABC owed Ms Doe a duty of care because it had the power to disseminate her information widely and was obliged by statute not to do so (distinguishing this case from the kind where, for example, a person spreads information by word of mouth).

Given that the plaintiff could have succeeded on either of these alternative grounds, it may be too early to claim that this case represents a quantum step in the development of the right of an individual to control personal information about themselves. In relation to the actions for breach of confidence and invasion of privacy, the fact that the plaintiff had a clear right to have certain information about herself protected under statute meant that the most difficult questions of:

  • how 'personal' must information be to attract protection under the general law; and
  • how to strike the balance between privacy rights and the right to freedom of expression,

did not have to be (and were not) considered in detail in this case. In this respect, the decision stops well short of clearly defining the elements of a new tort of privacy and the scope of any defences that may be available. Nevertheless, Her Honour has provided the appellate courts with a comprehensive set of options to choose from in deciding whether to further develop the protection of private information under Australian law.

A statutory tort of privacy?

Media organisations and publishers who are considering the implications of Jane Doe v ABC should also be aware that the development of a new tort of privacy is also being considered by other influential bodies in Australia.

In its submission to the Australian Law Reform Commission's Review of Privacy, the Office of the Federal Privacy Commissioner stated its belief that several positive arguments exist for the development of a cause of action for invasion of privacy, particularly if it is introduced a uniform manner throughout Australia, so as to avoid inconsistencies and 'forum shopping'.10    

The Office of the Federal Privacy Commissioner describes one model developed by Professor Des Butler as one that could form the basis of further debate.11  Professor Butler's model consists of two torts:

  • a tort relating to unreasonable intrusion upon privacy, the elements being an intentional intrusion (whether physical or otherwise) on another person where there is a reasonable expectation of privacy and where the intrusion would be highly offensive to a reasonable person of ordinary sensibilities; and
  • a tort relating to the disclosure of private facts, the elements being the existence of facts for which there is a reasonable expectation of privacy and publicity given to those private facts that would be highly offensive to a person of reasonable sensibilities, causing the plaintiff to suffer emotional stress, embarrassment or humiliation. 

Currently, the NSW Law Reform Commission is considering the desirability of a statutory tort of privacy and the Victorian Law Reform Commission is undertaking an inquiry into surveillance in public places, which may also impact on the news (and photo/video) gathering activities of journalists and media organisations

Allens Arthur Robinson will continue to provide regular updates regarding the development of privacy rights under Australian law.  

Footnotes
  1. The names Jane Doe and YZ were used to maintain protection from identification.
  2. Jane Doe v ABC & Ors [2007] VCC 281.
  3. Hosking v Runting (2004) 7 HRNZ 301.
  4. (2001) 208 CLR 199.
  5. [2003] QDC 151.
  6. See for instance Kalaba v Commonwealth [2004] FCA 763 and Giller v Procopets [2004] VSC 113.
  7. Judge Hampel referred (see paras [108] and [109] of her judgment) to English authority - Hoffman L, Campbell v MGM [2004] 2 AC 457, at [51], and Sedley LJ in Douglas v Hello – and to Gleeson CJ in Lenah Game Meats at [43].
  8. Hampel J at [115] and [116]. 
  9. Hampel J at [163].
  10. See http://www.privacy.gov.au/publications/submissions/alrc/c1.pdf, from paras. 22 to 31. 
  11.  D Butler 'A Tort of Invasion of Privacy in Australia?' (2005) Melbourne University Law Review 11.

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