Australia: Privacy rights – a new reason for action?

Lynn Waller (pseudonym) v Romy Barrett (pseudonym) (2024) VCC 962

in short

Recent decisions from the Victoria County Court, Lynn Waller (pseudonym) v Romy Barrett (pseudonym) (2024) VCC 962, indicating that there was an Australian common law cause of action for invasion of privacy.

The trial judge held that the right to privacy is a value different from the right to confidentiality of information. She therefore argued that privacy needed to be protected separately from breach claims. This brings Australia closer to the position accepted by the UK, US, Canada and New Zealand.

Regardless of whether the decision is ultimately approved by the High Court, it represents an important step in recognizing the need for legal protections against unauthorized disclosure of private information. We will continue to monitor this area closely, particularly in light of the recent passage of the Privacy and Other Legislation Amendment Bill (pending Royal Assent), which will create statutory torts for serious breaches of privacy.

claim

Plaintiff Lynn Waller is the estranged daughter of defendant Romy Barrett. In 2010, the defendant was convicted and sentenced to 12 years in prison after a near-fatal stabbing orchestrated by his then-wife (the plaintiff’s mother). After the incident, the plaintiff and defendant became estranged. During the separation, the plaintiff made allegations of sexual misconduct against the defendant.

Between 2012 and 2014, the Defendant was involved in five publications involving the Plaintiff: articles in Marie Claire, The Age and The Sydney Morning Herald; an interview on Channel 7’s Sunday Night Programme; and a The book is titled Love You to Death: A Story of Sex, Betrayal, and Murder Wrong.

As a result of these publications, the plaintiff alleged breach of confidentiality, breach of statutory duty, invasion of privacy and negligence against the defendants.

Decide

The trial judge found the defendant liable for breach of confidentiality and invasion of privacy. The total damages awarded in both proceedings is A$40,000.

breach of trust

The plaintiff argued that the defendant disclosed to the media private details of the plaintiff’s consultation process, which constituted a breach of confidentiality. The trial judge held that confidentiality had been breached by some of the details in which the defendant had “necessary confidence” (e.g. the plaintiff blamed the defendant for her mother’s death and that she wished the defendant had died). Damages of A$10,000 were awarded for this cause of action.

Breach of legal obligations

As of the time of publication, the defendant was subject to an intervention order (IVO) in favor of the plaintiff. Under the order, the defendants are prohibited from posting any material about the plaintiff on the Internet, email or other electronic communications; contacting or communicating with the plaintiff; or causing others to do anything that the defendant is prohibited from doing under the order. The judge held that although she believed the IVO had been breached, this was a criminal matter and would not give rise to a private action for damages.

Invasion of privacy

One of the disclosures that the plaintiff claimed was a breach of confidentiality was found to be false during the trial. Therefore, the judge held that this disclosure could not constitute a breach of confidentiality. Nonetheless, Tran J assessed that the defendant’s disclosures, although incorrect, were “frank and highly personal”. He said that “a reasonable person in Lynn’s position would find the disclosure (or purported disclosure) of Lynn’s private emails highly objectionable.” Therefore, he held that the plaintiff had an action for invasion of privacy damages. reason. Damages of A$30,000 were awarded for this cause of action.

negligence

The plaintiff claimed that the defendant breached their duty of care as a parent by negligently disclosing personal/private information, which allegedly caused emotional harm to the plaintiff. Tran J held that, in the circumstances, it was unreasonable to impose a duty of care on the defendant not to make public statements that might cause emotional harm to the plaintiff.

Causes of action for invasion of privacy

The presiding judge held that “it should be recognized that actions for invasion of privacy are part of the common law of Australia.” She stated that the purpose was not to create new causes of action, but to classify the causes of action for breach of confidentiality into:

1. breach of trust – Actions to protect confidential information and trade secrets; and
2. Invasion of privacy – Actions to protect the privacy and dignity of human beings (applicable only to natural persons). This reason for action “focuses on protecting human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to be respected and respected by others.”

Ultimately, the judge held that breaches of confidentiality and invasions of privacy protected fundamentally different fundamental values ​​and therefore should be dealt with separately. Her view is that separation will allow the law to develop coherently in a way that best protects these values.

Your Honor did not define the essential elements of the action or consider any defenses that might have been available. Still, she argued, an invasion of privacy lawsuit should be brought at least “in circumstances where a reasonable person in the plaintiff’s shoes would find the disclosure of private matters highly offensive.”

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Thanks to Hannah Stacey for assisting in preparing this alert.