♠ What protection is currently offered?
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V I OL E N C E
Despite the increasing prevalence of ‘revenge porn’, Australian courts and parliaments appear reluctant to create a generalised tort of invasion of privacy to combat the issue. This absence of a formalised legal response has left complainants with a limited range of remedies. The ALRC, in its recent 2014 report, identified that although the existing law provides protection against some invasions of privacy, there are significant gaps and uncertainties. In particular, outside actions of trespass, malicious prosecution or defamation, tort law does not provide a remedy for intentional infliction of emotional distress, except that which amounts to ‘psychiatric illness’. To remedy this, the ALRC recommended that a tort for serious invasions of privacy should be actionable per se, therefore allowing for the recovery of damages for emotional distress.²
Emotional distress — A gap in the law: Wilson v Ferguson (2015) The recent case, Wilson v Ferguson³ evinced both the power of equitable damages and the idea that courts are willing to stretch the relief offered to victims where a breach of confidence has occurred. Here, the plaintiff, Ms Caroline Wilson, was successful under the equitable doctrine of breach of confidence for an act of ‘revenge porn’ and awarded significant damages for the emotional distress caused by the incident. Ms Wilson and the defendant, Mr Neil Ferguson, were both colleagues and engaged in a personal relationship. Almost immediately after the pair broke up, Mr Ferguson uploaded ‘16 explicit photographs and two explicit videos’ that Ms Wilson had sent to him during their relationship, on his Facebook profile. In addition to finding that the elements of the equitable obligation of breach of confidence were satisfied and awarding $13,404 for economic loss to the plaintiff, his Honour also found that the case warranted a sum of ‘additional damages’. It was noted that, Ms Wilson suffered ‘significant embarrassment, anxiety and distress as a result of the dissemination of intimate images of her in her workplace and among her social group’. It is this kind of conduct that could be considered an outrageous invasion of privacy and may justify an award of exemplary damages, where in this case, in the absence of a statutory or common law remedy for breach of privacy, the equitable cause of action for breach of confidence was used to fashion a remedy for Ms Wilson.⁴ On this basis, where online shaming involves some unauthorised disclosure of information, images or other material, the equitable doctrine of breach of confidence is a viable legal avenue and the court may allow additional damages for the distress caused.
A G A I NS T W O ME N and
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A new privacy tort? On a final note, taken from the 2014 ALRC Report in support of the introduction of a new tort, Australia’s privacy laws should also reflect our international obligations, such as the International Covenant on the Elimination of All Forms of Violence Against Women (CEDAW). The disclosure of sexually explicit images of people without their consent is one type of violence against women and consequences ought to be strict.⁵ It is unclear as to whether the legislature will lend support to the creation of a statutory tort of privacy or whether it will instead consider that such a response is unnecessary in light of decisions such as Wilson and the scope of equitable damages. In any case, it is paramount that remedies are available to victims who have suffered such gross invasions of privacy. What is clear however, is that in an era where the concept of ‘privacy’ is becoming increasingly delicate, issues surrounding its protection have been exacerbated as a result of technological developments. As a result, new avenues for individual’s privacy to be invaded have arisen. As such, the sanctity of individual privacy should not be forsaken, but rather, safeguarded. 1
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THE FULL BENCH
Tom Gotsis, ‘Revenge Pornography, Privacy and the Law’ (e-brief issue 7/2015, NSW Parliamentary Research Service,
Parliament of Australia, 2015) 2. 2
Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era - Final Report, Report No 123 (2014) 51.
3 [2015]
WASC 15.
4
Susan Gatford, ‘Revenge Porn Makes New Law’ (2015), Privacy Law Bulletin 12, 25.
5
Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era - Final Report, Report No 123 (2014) 35.