Breach of privacy in New South Wales

January 16, 2012 |

A recent story in the Sydney Morning Herald, Sex, lies and a phone video, reported a story about an egregious breach of  privacy.

The story provides:

HE CLAIMED the mobile phone recording of a tryst was just something to remember her by.

But when Cameron Trevail’s attempts to keep his two-year relationship alive failed, he threatened his former partner – sleep with him again or he would put the recording on the internet.

He faces jail for stalking and intimidation with the intention of causing her physical or mental harm. The state’s top magistrate, Graeme Henson, said in the Downing Centre court late last month such conduct must not be allowed to go without serious punishment.

The court heard that, during the couple’s relationship, the 25-year-old filmed a sexual encounter without his girlfriend’s knowledge.

At one point during the act, the victim did become aware of Trevail’s mobile phone pointed towards them but at no point consented to being filmed.

When the relationship ended in December 2010, Trevail assured her the video was only for him and he just wanted to keep it as a ”nice memory” of their time together.

For several months, he continued to contact her by phone and text messaging despite the victim’s requests to the contrary.

By May last year, he had clearly become frustrated. He rang the victim and said if she did not sleep with him again he would publish the graphic video online.

He claimed he would come over by 11pm for a sexual encounter, stating: ”If you don’t see me, I’ll blackmail you and put that shit on the net. You understand me.” The victim, referred to as ‘V’ in court to protect her identity, contacted police.

Mr Henson said Trevail’s conduct was deplorable, and community standards should condemn his actions as ”outrageous”.

”Every member of the community, irrespective of his or her prior relationships with other members of society, is entitled to their privacy,” Mr Henson said.

”Whatever may have been the belated silent acquiescence on the part of the victim to the offender’s unilateral and furtive undertaking in videotaping their sexual activities, there was no consent to the publication of this article to a wider audience,” he said.

Mr Trevail had ”constructed the means of intimidating the victim to submit to his sexual advances”.

Accordingly, he said, imprisonment was the only appropriate sentence. However, he was considering allowing Trevail to serve his term under an intensive corrections order because he did not actually publish the video online.

Mr Henson has adjourned the case until next month, saying if Mr Trevail was deemed unsuitable for an order, he would have to be jailed.

The facts in Giller v Procopets and what Mr Trevail did are analogous. In Giller all the parties knew a video was being made.  Here Trevail’s former partner did not know that a video was being made.  She may have vaguely suspected.

Under the principles in Giller a breach of privacy in this situation may be sustainable.  There was a relationship of confidence and it was breached.  As the law currently stands it is one of the few fact situations where a claim for a breach of privacy is enforceable.  If there was a stand alone tort of privacy the issue would not be establishing a duty of confidence then determining whether there is a breach and then establishing damages.

Of course Trevail’s problems are a little greater than a breach of confidence action.  There may be a claim

Leave a Reply