Sex, Lies And Videotape: Breach Of Confidence Claims And Awards Of Damages

Key Points

Damages are now available for pure mental distress for breach

of confidence claims, where the essence of the claim is that there

has been a misuse of private information. This could have important

consequences for the media in Australia.

In this case, the Victorian Court of Appeal chose to adapt the

existing action of breach of confidence rather than recognise a

novel action for breach of privacy.

Last week, we

reported that the Victorian Court of Appeal awarded damages for

the distress caused by the unauthorised showing of a private sex

tape. Today, we look at the decision in Giller v Procopets

[2008] VSCA 236, and its potential consequences, in more

detail.

In Giller v Procopets, the Victorian Court of Appeal

declined to decide whether a common law action for breach of

privacy currently exists in Australia. However, it is the first

Australian appellate decision to follow

a line of English authority allowing damages for emotional

distress for breach of confidence, in cases where that action is

akin to a tort of "misuse of private information". These

cases have most commonly involved the tabloid media publishing

surreptitiously obtained photographs of celebrities.

Accordingly, the decision is important for both its impact on

the approach taken to developing privacy law in Australia, and its

consequences for Australia's media and others who have the

power to disclose "private information".

The parties and the relationship of

confidence

Mr Procopets and Ms Giller were in a de facto relationship.

After they ceased living together, they continued to have sex. Mr

Procopets filmed a number of these sexual encounters on a hidden

video camera. At first, Ms Giller was unaware of the filming but

later she acquiesced in it. After the relationship deteriorated, Mr

Procopets attempted to show the videos to several of Ms

Giller's family and friends. Although several refused to watch

it, he did show the video to the mother of one of her friends.

Further, he phoned her employer and said that he had a video of her

engaging in sexual activity, in circumstances where (he said) it

was unethical for her to do so.

Shortly thereafter, Mr Procopets was arrested and a restraining

order (which included a restraint on the distribution of the

videos) was taken out. However, six months later Mr Procopets

showed the video to another woman he was in a relationship with and

his bail was revoked.

Ms Giller sought damages for publication of the videos as part

of a broader civil action (including a de facto property dispute

and civil claims for assault). Ms Giller relied on three causes of

action: breach of confidence; breach of privacy; and intentional

infliction of mental harm. We deal only with the actions for breach

of confidence and breach of privacy.

Breach of confidence

The Court of Appeal overturned the trial judge's decision

that damages could not be awarded for "mere distress" not

amounting to psychiatric injury. Justice Neave, with whom President

Maxwell agreed, said that because "the Australian position

[was] at large on this issue" the Court could, in line with

one suggested approach in ABC v Lenah Game Meats Pty Ltd

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