An Australian court has, for the first time, made an award of damages to compensate a plaintiff for "mere distress" which had resulted from a breach of confidence. On the authority of this decision, it is no longer necessary to prove an actual psychiatric injury in order to obtain damages where a duty of confidence has been breached.
In Giller v Procopets [2008] VSCA 236 (10 December 2008), the Victorian Court of Appeal had to determine (amongst other issues) whether Ms Giller was entitled to damages for the distress that she suffered when her estranged de facto husband tried to show her family and friends videotapes he had made, initially surreptitiously, of their sexual activities.
The Court of Appeal determined that the existence of jurisdiction for the court to entertain an application for an injunction was sufficient also to enliven its power to make an award of damages, notwithstanding that no such application had been made.
However, as the trial judge had found that Ms Giller had not suffered any psychiatric injury as a result of the distribution of the videotapes, it was necessary for it to determine whether or not distress alone can be a sufficient basis for damages to be awarded.
Although, prior to this case, some views had been expressed that actions for breach of confidence could be regarded similarly to actions for defamation - that is, as an exception to the general rule that damages are not ordinarily recoverable for distress or injury to feelings – no Australian court had ruled to this effect. In recent years, however, there have been some UK decisions in which courts there had awarded damages for distress. These decisions – which included a claim by a model, Naomi Campbell, arising from the tabloid publication of her attendance at a narcotics anonymous meeting and a claim by the actors Michael Douglas and Catherine Zeta Jones against Hello! Magazine – were cited by the Court of Appeal.
The members of the Court of Appeal came to the unanimous conclusion that there should be no barrier to the making of an order for damages to compensate a claimant for the embarrassment or distress suffered by reason of a breach of confidence. In doing so, the Court found that the relevant conduct had been undertaken for the deliberate purpose of humiliating, embarrassing and distressing Ms Giller and that it was therefore appropriate to include in the award a component for aggravated damages.
While no superior court in Australia has recognised the existence of a tort of "invasion of privacy" (which was the subject of consideration in the Australian Law Reform Commission's May 2008 report on Australian privacy laws), and the Court of Appeal in Giller did not find it necessary to decide that issue, the ability of plaintiffs who have had their confidential information published without their consent to secure awards of damages – including aggravated damages – may necessitate significant changes to the approaches taken by, in particular, media organisations when deciding what they should or should not publish.
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