In Wilson v Ferguson[2015] WASC 15 the West Australian Supreme Court, per Mitchell J, issued an injunction and awarded damages by way of equitable compensation against the Defendant in a claim brought in equity for the misuse of private information.

FACTS

The plaintiff met the defendant in May 2011. Both were employed at Cloudbreak and worked in the same crew [19].  They began to date as boyfriend and girlfriend in November 2012 and after a few weeks the plaintiff moved into the defendant’s home [20]. During their relationship they would send each other photographs of a sexual nature depicting each other naked or partly naked [22] with the defendant initiating the exchange. The defendant also took explicit photographs of the plaintiff with her knowledge and consent [22]  and she also used her mobile phone to take videos of herself nude and, on at least one occasion, engaging in sexual activity [23].

Some time after the videos were taken, the plaintiff left her mobile phone unattended in their lounge room while the defendant was present. On her return he told her that he had taken her phone and used it to email the videos to himself. She became angry and upset and an argument ensued. The plaintiff asked the defendant why he ‘went into’ her phone and emailed the videos to himself and asked him to make sure that nobody else saw the videos, which were just for him. He agreed that no one would see the videos [24]. She followed that up with a text messages to the effect ‘that he wouldn’t be showing them to his friends or anything like that’ and of her understanding that there was a trust between the parties that the photographs would be private and that other people would not see them.

Prior to 5 August 2013, the plaintiff had never shown the photographs or videos to anyone other than the defendant or published them in any way.

The Court accepted the plaintiff’s evidence that during their relationship the defendant threatened to post photographs of the plaintiff on Facebook and YouTube and stated:

On these occasions the plaintiff would beg the defendant not to carry out the threat and would try to calm him down. The defendant did not, to the plaintiff’s knowledge, publish or distribute any of the photographs or videos to any third person prior to 5 August 2013[25].

The domestic relationship deteriorated and on 5 August 2013 the plaintiff  alleged, via text message, to the defendant that he was cheating on her and that she wanted nothing to do with him [26].  Later that day, and in response, the defendant posted 16 explicit photographs and two explicit videos depicting the plaintiff on his Facebook page [27] with the comment

‘Happy to help all ya boys at home.. enjoy!!’ and  ‘Let this b a fkn lesson.. I will shit on anyone that tries to fk me ova. That is all!’

In posting the photographs and videos the photos and videos were accessible to the defendant’s approximately 300 ‘Facebook friends’.  Many of those persons also worked at Cloudbreak. The court noted that those ‘Facebook friends’ were themselves able to download the photographs and videos and distribute them to others [28].

From about 5.20 pm on 5 August 2013, the plaintiff began to receive telephone calls and text messages from friends asking if she had seen what the defendant had posted on his Facebook page. The plaintiff did not have a Facebook account and used a friend’s Facebook account to see the photographs and videos which the defendant had uploaded onto his Facebook page [29].

The defendant then sent the plaintiff a text message with an explicit image of the plaintiff and the text ‘All in fb so fk u n the fkd up shit u represent. Hahaa’ and a text message stating “Fkn photos will b out for everyone to see when I get back you slappa. Cant wait to watch u fold as a human being. Piece if shit u r.” [30] and later a text message which said ‘There’s 2 vids so hopefully the lesson us learnt’[31].

The plaintiff sent the defendant a series of text messages begging him to take the photographs and videos down and the photographs and videos were removed from the defendant’s Facebook page that night [32].

The court noted that the publication of the explicit images the plaintiff was  horrified, disgusted, embarrassed and upset. She felt particularly humiliated, distressed and anxious because she and the defendant both worked at the same site. The court inferred that many of the parties’ mutual friends and colleagues saw the photographs and videos [38]. As a consequence the plaintiff was alarmed and extremely anxious and could not sleep for about three nights and has continued to sleep badly.  As at the time of trial she was taking sleep aid tablets nearly every night and was undertaking counselling sessions [39].

The plaintiff did not feel able to return to work until 30 October 2013, taking leave without pay during this period. As a result she suffered a loss of wages of $13,404 [40]. As a result of the incident, the defendant’s employment at Cloudbreak was terminated with effect from 14 August 2013 [41].

DECISION

Inferences and findings of fact

The Court drew the following inferences, [33], from the timing and content of the Facebook posts and the text messages

1. that the defendant posted the photographs and videos of the plaintiff on his Facebook page because he was angry at her decision to terminate their relationship and because he wanted to cause her extreme embarrassment and distress.
2. the defendant expected the publication of the photographs and videos to cause the plaintiff to ‘fold as a human being’.
3.  the defendant was well aware that the plaintiff regarded the images of her as intensely private and confidential, and that she would be horrified at their publication.
4. the defendant’s conduct indicates that he was well aware that the images were regarded by the plaintiff as private and that he did not have her consent or authority to show them to any other person.

The Court made the following factual findings:

1.  the plaintiff continues to feel humiliation and anxiety as a result of the defendant’s publication of the photographs and videos [42];
2. the plaintiff feels that many of her work colleagues and friends smirk at the thought of what they saw on the defendant’s Facebook page [42];
3. the plaintiff is concerned that some of the photographs and videos may have been downloaded and forwarded to persons who were not the defendant’s Facebook friends [42];
4. the intimate images of the plaintiff clearly had the necessary quality of confidence about them. The explicit nature of the images was itself suggestive of their confidential character. Intimate photographs and videos taken in private and shared between two lovers would ordinarily bear a confidential character, and be implicitly provided on condition that they not be shown to any third party [56]
5. that confidential character was confirmed by the discussions between the plaintiff and defendant, in which the plaintiff emphasised the deeply personal nature of the images[56];
6. the images were not in the public domain in any sense prior to the defendant’s publication of them[56];
7. preservation of the confidentiality of the images was clearly a matter of substantial concern to the plaintiff, and would have been regarded as highly offensive to any reasonable person of ordinary sensibilities and the defendant appreciated this [56];
8. the circumstances in which the defendant obtained the images of the plaintiff were such as to impose on the defendant an obligation of conscience to maintain the confidentiality of the images [57];
9. the fact that the defendant emailed copies of the sexually explicit videos to himself from the plaintiff’s phone without her knowledge or consent would of itself ordinarily be sufficient to import an obligation of confidence [57];
10. the nature of the photographs and the circumstances in which they were obtained or provided were such as to make it obvious to any reasonable person standing in the shoes of the defendant that the images were for his viewing only and were not to be shared with any other person [58];
11. any disclosure of the images to third parties would be likely to cause immense embarrassment and distress to a person in the plaintiff’s position. The defendant appreciated this, and was in fact motivated by the embarrassment and distress which publication of the photographs would cause to the plaintiff [58];
12. the statements made by the plaintiff to the defendant about the images prior to their disclosure also made it clear that the images were provided on the basis that they would not be shared with others [58];
13. the defendant misused the images by posting them on his Facebook page, so that they were accessible to hundreds of his ‘Facebook friends’, many of whom worked with both the plaintiff and defendant [59];
14. the defendant’s actions were not for any innocent purpose. They were actuated by the motive of causing embarrassment and distress to the plaintiff in response to the plaintiff ending the relationship. It was a response to the end of the relationship and the defendant sought to hurt her by using private information obtained in confidence during the course of the relationship.
15. to the extent that it is necessary for the plaintiff to show that the disclosure was to her detriment, she proved that the publication of the images was deeply distressing to her and resulted in her having to take time off work and undertake counselling to assist her in dealing with her distress.

General principles

In reviewing the authorities the court, at [43], regarding injunctive relief his Honour stated:

the court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.

While the Court stated it was necessary to show that there will be an unauthorised use of the information it is less certain as to whether it is necessary to show that that use will be  to the detriment of the party communicating it.

The Court described the essential elements of an action in equity for breach of confidence as being:

1. that the information was of a confidential nature,
2. that it was communicated or obtained in circumstances importing an obligation of confidence, and
3. that there was an unauthorised use of the information [46]

The equitable doctrine may be applied to images of a person, even where the images were created by the person sought to be restrained from disclosing the images [47].

His Honour cited the genesis of a cause of action involving images as the 19th century cases of Prince Albert v Strange and  Pollard v Photographic Company [48] & [49].  The court also referred to and relied upon Duchess of Argyll v Duke of Argyll  where the court restrained the disclosure of confidential personal information obtained in circumstances attracting an obligation of confidence, there in the course of a marriage, because it recognised that it was the  the nature of the communications, by which mutual confidences were shared between the married partners, was implicitly confidential.  His Honour concluded that, as such:

The case establishes that the intimate nature of a personal relationship between two people may give rise to a relationship of trust and confidence such that, without express statement to that effect, private and personal information passing between those people may in certain circumstances be imbued with an equitable obligation of confidence.[51]

As expected the Court referred to Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, where Gleeson CJ noted that a private image, surreptitiously obtained, may constitute confidential information provided that:

”[t]he requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private’.[53]

The court here was concerned with the application to protect  private information comprising digital images of her naked or partly naked and, in some cases, performing sexual acts which which was brought in response to the disclosure of that private information by the defendant.  The detriment the Court considered in issue was damage to reputation, embarrassment and emotional distress already suffered and to prevent further detriment which would flow from further publication of the images [44]. In that context

equity imposes an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained [45].

 Regarding remedies the court stated, at [60], that is:

well established that a court exercising equitable jurisdiction may restrain the publication, or further publication, of information in breach of an equitable obligation of confidence. 

Injunctive Relief

The court found there was no discretionary reason to deny the plaintiff the injunctive relief [61].  The Court found that the defendant’s past conduct of publishing the images gave rise to a reasonable apprehension that the conduct might be repeated. There was no evidence that the distribution of the images has been so widespread that the grant of injunctive relief would serve no utility or that the images have lost their confidential character by reason of the extent of their publication. The court noted that the plaintiff has not unreasonably delayed seeking injunctive relief and has not been shown to have engaged in any conduct which would otherwise provide a basis for the exercise of discretion to refuse relief [61].

The Court found there were grounds to order an injunction that would:

“.. prohibit the defendant from publishing photographs or videos of the plaintiff engaging in sexual activities or in which the plaintiff appears naked or partially naked (including with breasts exposed). [65]

Equitable compensationThe Court found that equitable compensation was an available remedy for a breach of an equitable obligation of confidence ([68] – [69]).  The purpose of the award is to put the innocent party in the position she, in this case, would have been in had the misuse of the confidential information not occurred [70]. In finding that equitable compensation can be awarded to compensate a plaintiff for non economic loss comprising the embarrassment and distress occasioned by the disclosure of private information in breach of an equitable obligation of confidence the Court referred to and relied upon the ratio in Giller v Procopets ([73] – [77] and [82] – [83]) which his Honour stated, at [76]:

It does, in my view, represent a development in the equitable doctrine in Australia

 and at [82]:

The step taken in Giller, recognising that the relief available for such a breach of the equitable obligation is not confined to an injunction, but extends to monetary compensation, avoids the obligation being effectively unenforceable in many cases. The development may be seen as giving effect to the ‘cardinal principle of equity that the remedy must be fashioned to fit the nature of the case and the particular facts’. Given the recognised flexibility of the remedy of equitable compensation, the approach taken in Giller is an appropriate incremental adaptation of an established equitable principle to accommodate the nature, ease and extent of electronic communications in contemporary Australian society.

The court agreed with the Victorian Court of Appeal in Giller that:

“..the equitable doctrine of breach of confidence should be developed by extending the relief available for the unlawful disclosure of confidential information to include monetary compensation for the embarrassment and distress resulting from the disclosure of information (including images) of a private and personal nature.” [83]

The Court found it appropriate to award the plaintiff equitable compensation for the damage, being significant embarrassment, anxiety and distress as a result of the dissemination of intimate images of her in her workplace and among her social group [85].  In assessing quantum the Court considered the relevant factors as, at [85], including:

1. the fact that the impact of the disclosure on the plaintiff was aggravated by the fact that the release of the images was an act of retribution by the defendant, and intended to cause harm to the plaintiff; and
2. the fact that the plaintiff has not sustained a psychiatric injury, and its amount should not be disproportionate to amounts commonly awarded for pain, suffering and loss of amenity in tortious personal injury cases.

His Honour awarded, at [85], the plaintiff:

• general damages of  $35,000,
• economic loss of $13,404.

Orders made [90]

The court made the following orders:

1. The defendant shall not, either directly or indirectly, publish in any form any photographs or videos of the plaintiff engaging in sexual activities or in which the plaintiff appears naked or partially naked (including with breasts exposed) other than:

(a) as may be required by law;

(b) to professional advisers for the purpose of obtaining professional advice;

(c) with leave of this Court; or

(d) with the express written consent of the plaintiff.

2. The defendant pay to the plaintiff equitable compensation in the amount of $48,404.00.
3. The defendant pay the plaintiff’s costs of the action, including any reserved costs, to be taxed.

ISSUE

While this decision does not break new ground in the development of general equitable principles it is very significant for a number of reasons.  At the outset it is the first reported decision finding for a plaintiff in a breach of confidence action involving a misuse of personal information since the Victorian Court of Appeal in in Giller v Procopets.  An important maturation of the cause of action.  The Court applied the principles for the equitable compensation under the claim of misuse of private information as set out in Giller.  It is also significant as precedent for seeking injunctive relief under such a head of action.   The methodology the court, sitting in the trial division, adopted is more detailed than that adopted in Giller. That is not surprising given the Court of Appeal in Giller considered the general principles while in Wilson the Court sought to apply those principles forensically to the evidence.

The decision is also significant in that the court considered the current technology of choice, digital download of personal information while in Giller the court considered the misuse of personal information held on video tape. The principles remain the same but there are other issues the court, and practitioners, must consider with  personal information posted on line, more particularly on the most popular social network site, Facebook.  One issue the court had to consider was the potential extent of the the disclosure. The defendant had 300 friends who could have viewed the pictures and videos.  That data could have been downloaded and onforwarded to others.  This issue is well traversed in defamation cases but less so in the privacy related litigation generally and within the Australian jurisdiction in particular.  No doubt his Honour’s comments and analysis will be useful for practitioners in the future.

Given the ubiquity of the mobile phones with cameras, the ease of posting pictures and videos (as well as audio recordings) onto social networking sites the thorough and thoughtful analysis of the court in this case will be of great assistance generally for practitioners and useful precedence.

The decision is also a valuable addition to the precedents for the assessment of non economic loss.

The decision has received significant coverage, in particular with Facebook sex tape case has implications for privacy law in Australia which provides: