Litigating privacy cases in the wake of Giller v Procopets

Intellectual Property
List G Mr 8284
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Recently the Victorian Supreme Court of Appeal in Giller v Procopets, in lowering the damages threshold for breach of confidence, paved the way for this equitable cause of action to respond to invasions of privacy arising from the non-consensual disclosure of personal information.

Recently the Victorian Supreme Court of Appeal in Giller v Procopets, in lowering the damages threshold for breach of confidence, paved the way for this equitable cause of action to respond to invasions of privacy arising from the non-consensual disclosure of personal information. This paper explores the right of privacy in Australian Law, demonstrating that breach of confidence can now be used to protect privacy interest, and provides a foundation that is arguably far greater than the protection offered in privacy tort countries, such as New Zealand. The Court of Appeal’s decision in Giller represents solid ground work for the protection of individual privacy. Australian courts, in the absence of a statutory cause of action, now face the Challenge of balancing the competing interests of individual privacy against the public interest in allowing freedom of expression.

Thousands of column inches and hours of air time have been recently devoted to the story of Lara Bingle and that photo – a private moment, seemingly captured without her consent and distributed, ultimately, in to the mainstream media. Legal opinion has been sought, expressed and published on the issue of whether Lara Bingle has a cause of action to seek damages for a breach of privacy. Much of the legal commentary has been in the negative – that Lara in out of luck – as there is no right to privacy or tort of privacy in Australia.

Although correct, insofar as no right of privacy exists in the Australian jurisdiction, this narrow opinion overlooks the recent Victorian Supreme Court of Appeal decision in Giller v Procopets, which gave breach of confidence the teeth to respond to invasions of privacy arising from the non-consensual disclosure of personal information. As a result, I suggest that Lara is not out of luck at all. On the contrary, Australian law is on her side, and is now more closely aligned with the body of privacy jurisprudence from the United Kingdom.

The equitable cause of action, breach of confidence, is now a powerful weapon in the protection of privacy, In lowering the damages threshold for breach of confidence, Giller paved that way for proceedings to be confidently commenced, not only to restrain publication of private information, but also to seek damages when such information is published. Tabloid media – be alert! Be Alarmed!

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Michael has a diversified commercial practice, which includes general commercial law, intellectual property and trade practices, trade secrets, privacy, confidential information, media, data protection, cyber law, class action and professional liability.

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