'Characterisation Of Breach Of Confidence As A Privacy Tort In Private International Law' by Michael Douglas in (2018) 41(2)
University of New South Wales Law Journal 490 comments
Certain kinds of breach of confidence may be characterised as torts, at least for the purposes of Australian private international law, in respect of rules of jurisdiction and choice of law. When a breach of confidence involves a misuse of private information, a tortious characterisation is appropriate. This view is consistent with appellate authority recognising the unique character of equitable jurisdiction. The article begins by considering debates concerning the juridical basis of breach of confidence, and its metamorphosis into the tort of misuse of private information. The very existence of that debate indicates that breach of confidence may intelligibly have more than one character. The substantive principles of breach of confidence inform the way that cross-border problems ought to be resolved in private international law. The remainder of the article considers characterisation in respect of long-arm jurisdictional rules, and then in respect of choice-of-law rules.
Douglas argues
It is a trite observation that serious invasions of privacy may occur with increasing ease in the digital era. Mobile technology facilitates intrusion upon seclusion; the internet facilitates sharing of improperly obtained information. Lawmakers have responded to this environment by criminalising ‘revenge pornography’, while social media platforms like Facebook have taken steps to improve their self-regulation mechanisms to protect potential victims. But despite these developments, Australian law does not offer the civil remedies for invasions of privacy which are available in other Commonwealth legal systems. The High Court declined to recognise a common law privacy tort in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. The Australian Law Reform Commission’s 2014 recommendations for a statutory tort were largely ignored, as were more recent state-based recommendations.
In at least two Australian cases, superior courts have adapted the general law to vindicate violations of privacy. In Giller v Procopets, the Court of Appeal of the Supreme Court of Victoria held that equitable compensation would be available in relation to distress arising from a breach of personal privacy that was framed as a breach of confidence claim. Apart from its equitable jurisdiction, the Court also relied on Victoria’s incarnation of the Lord Cairns Act. More recently, in Wilson v Ferguson, the Supreme Court of Western Australia followed Giller v Procopets and awarded equitable compensation for distress arising from an instance of revenge pornography in the context of a breach of confidence claim. Although there is no tort of invasion of privacy in Australia, these decisions may lend support to the view that, at least in some cases, breach of confidence might be characterised as an ‘equitable tort’. Some have advanced these kinds of arguments for years. They do so bravely, treading ground which is susceptible to derision with the ‘fusion fallacy’ label. This article avoids that debate by limiting its analysis to the characterisation of breach of confidence in private international law problems.
In a broad sense, ‘characterisation’ is of the essence of legal reasoning. In order to apply the doctrine of stare decisis, a court must determine whether one case is like another. Characterisation thus involves comparison and taxonomy. It involves an understanding of the facts, the sources of law on which the issues arise, and the exercise of characterisation itself. Characterisation is important because it is how courts fashion the premises for legal argument. In hard cases, courts may legitimately adopt any one of multiple competing characterisations. As Edelman J recognised in a related context in Australian Competition and Consumer Commission v Valve Corporation [No 3], ‘different factors will often point in different directions’. The ambiguity is resolved through the application of value judgments, which might be disguised, hidden or suppressed. The same observations may be directed to the characterisation exercise in private international law, where the claim (in the case of certain jurisdictional rules) or the issue (in the case of choice-of-law rules) must be characterised to determine the proper approach to a cross-border problem.
The thesis of this article is that certain kinds of breach of confidence may be characterised as torts, at least for the purposes of Australian private international law. This follows the suggestion by the authors of Dicey, Morris and Collins on the Conflict of Laws. It is argued that, when a putative breach of confidence involves a misuse of private information in cross-border circumstances, it may be characterised as tortious for the purposes of rules of jurisdiction and choice of law. A tortious characterisation would serve the ends of certainty and comity which are fundamental to common law choice-of-law techniques. It would also serve the policy considerations which have underpinned the development of the substantive principles concerning misuse of private information. It is argued that this approach is consistent with appellate authority recognising the unique character of equitable jurisdiction.
The article begins by identifying characterisation in private international law. It then considers debates concerning the juridical basis of breach of confidence and its metamorphosis in some common law jurisdictions into the tort of misuse of private information. The very existence of that debate indicates that breach of confidence may intelligibly have more than one character. The substantive principles of breach of confidence inform the way that cross-border problems ought to be resolved in private international law. The remainder of the article considers characterisation in respect of long-arm jurisdictional rules, and then in respect of choice-of-law rules.
'Varieties of Damages for Breach of Privacy' by Jason N E Varuhas in Varuhas and Nicole Moreham (eds),
Remedies for Breach of Privacy (Hart, 2018)
comments
This paper offers a comprehensive account of the law of damages within the action for misuse of private information in English law. The paper interrogates which types of damages are and ought to be available for breach of privacy, and the legal rules and principles governing each form of damages including the approach to quantification. In examining the law of damages the paper considers the nature of the emergent privacy action, arguing that it has shed its equitable origins in breach of confidence and now closely resembles 'vindicatory' actions such as false imprisonment, battery and trespass to land. In turn the remedial approach for breach of privacy increasingly follows that adopted within these torts.
The paper first considers compensatory damages, arguing that a 'vindicatory' model ought to characterise the approach to compensatory damages, and is the prevailing approach in English law following the High Court and Court of Appeal's important decisions in Gulati v MGN Ltd. According to this approach, damages are available for the wrongful invasion of privacy in itself, irrespective of the suffering of material loss. In addition consequential losses are recoverable, including distress, recognised psychiatric illness and financial loss. Damages are available as of right and are not to be analogised with awards of 'just satisfaction' made by the European Court of Human Rights.
The paper then examines non-compensatory damages. The courts are yet to authoritatively determine the availability of such damages for breach of privacy, and the principles governing their award. The paper argues that exemplary damages ought to be available, but quantum should not be so high as to constitute disproportionate interference with free expression. An account of profits should not be available. But if such remedy were to be recognised it ought to be awarded only exceptionally and the criteria for granting an account should follow the normative concerns that underpin the privacy action. Reasonable fee or user damages are one means of measuring loss in property torts; they are not restitutionary. They ought not to be available for breach of privacy as it would be inapt to treat dignitary interests as if they were interests in tradeable commodities. The novel head of 'vindicatory' damages, recognised in a series of Privy Council appeals, should not be available as they would add nothing to existing remedies.
Lastly, the paper considers damages in lieu of an injunction, arguing that these damages compensate for the loss of a legal liberty to enforce primary rights; they are not restitutionary. Such damages ought very rarely to be awarded in the place of an injunction in a case of ongoing, unjustified invasion of privacy.
