December 10, 2008
Australian court rules on sex tape privacy claim
$40,000 award for breach of confidence but no recognition of privacy tort
The Victorian Court of Appeal today made an award of substantial compensatory damages to a woman whose former partner had attempted to show video tapes of the couple engaging in sexual activity to her friends and family members. However, the Court made its award on traditional breach of confidence grounds and did not, as had been anticipated, rule on whether a privacy tort should be recognised by Australian law.
The Respondent Mr Procopets had filmed sexual activities with the Appellant Ms Giller on a hidden camera (initially without but later with her consent). As their relationship broke down, the respondent showed the videos to two women, threatened to show them to others (including members of her family), and showed photos of a similar nature to her mother.
In its ruling handed down today, almost 16 months after the appeal hearing, the Court of Appeal held that the judge at first instance had erred in ruling that Ms Giller was not entitled to damages, either because she had not sought an injunction or that damages for breach of confidence were not available for mental distress falling short of psychiatric injury.
After considering English authorities including Campbell and Douglas, the court ruled that Ms Giller was entitled to damages for the distress caused to her by the breach of confidence, either as equitable compensation or under Lord Cairn’s Act. Although it rejected the submissions that there should be a punitive element to the award, or that the award should be in the order of the largest defamation awards, the court held that the defendant’s “deliberate purpose of humiliating, distressing and embarrassing” Ms Giller made it appropriate to make an award of aggravated damages. She was awarded $40,000, including $10,000 in aggravated damages.
The appellant had pleaded her case in the alternative as an invasion of privacy but the court refused to address this argument, as Mr Procopet’s actions constituted a breach of confidence.
In total the court awarded Ms Giller a sum of $135,000, which included damages in respect of a series of assaults Procopets had perpetrated against her, as well as an amount in respect of her claim for interest in a property the couple had once shared.
To read the 172-page judgment in full, click on the icon below.