Victorian Court awards damages for breach of privacy

While the Australian and NSW Law Reform Commissions are still considering the creation of a right to sue for breach of privacy, a judge of the Victorian County Court yesterday decided that such a right exists at common law and awarded $234,000 to a rape victim after the ABC had revealed her name on air. See The Australian "Rape payout creates privacy law".

The text of the decision by Judge Hampel in Doe v Australian Broadcasting Corporation & Ors (2007) VCC281, is available here. An important element in the case is that the publication of the victim's name was prohibited by the Judicial Proceedings Reports Act. The two journalists involved had both pleaded guilty to an offence under the Act. The judge did not accept that their ignorance of the law, and the lack of training provided by the ABC, were relevant in deciding that in addition, the rape victim also had a civil claim for damages.

After considering comments made in other cases about a possible right of action, Judge Hampel found that in this case, the right to privacy and the right to confidentiality of personal information were intertwined. The discussion of the privacy issue is in paragraph 146 and following. She concluded (163):

"The wrong that was done here was the publication of personal information, in circumstances where there was no public interest in publishing it, and where there was a prohibition on its publication. In publishing the information, the defendants failed to exercise the care which could be reasonably required of them to protect the plaintiff’s privacy and comply with the prohibition on publication imposed by s.4(1A). This, coupled with the absence of public interest, the clearly private nature of the information, and the prohibition on publication, all point to the publication being unjustified. In my view, a formulation of unjustified, rather than wilful, in these circumstances provides a fair balance between freedom of speech and the protection of privacy. For the reasons I have already canvassed when considering breach of confidence, the information is personal or confidential information which the plaintiff had a reasonable expectation would remain private, and clearly private. Its disclosure was plainly something which an individual was entitled to decide for herself.

I find therefore the defendants breached the plaintiff’s privacy by the unjustified publication of personal information, and are liable in damages as a result".