Whither breach of confidence: a right of privacy for Australia?

• Jurisdiction: Australia
• Date: 01 August 2002
• Author: Richardson, Megan

[Although privacy interests have long been protected under the equitable doctrine of breach of confidence, it is only recently that rights discourse has openly been relied on as the basis. However, some uncertainties remain. First, will a right `to be left alone' be protected under a separate privacy tort or equitable wrong and how might this be framed? Second, can commercial entities share in the privileges of a right of privacy? Third, what is the relationship between privacy and freedom of speech? It is argued that, while a sui generis privacy doctrine might have advantages in terms of greater transparency, the breach of confidence doctrine has already proved to offer appropriate protection of private information (supplementing the protection of the person and physical property under the torts of trespass). Further, the doctrine's treatment of commercial privacy interests and freedom of speech is consistent with a liberal-utilitarian theory of privacy rights.]

I INTRODUCTION

Although privacy interests have long been protected under the equitable doctrine of breach of confidence, it is only recently that rights discourse has openly been relied on as the basis. References in several of the judgments in the High Court case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (1) to personal autonomy as the particular reason why privacy interests are and should be protected might lead us to think an Australian right of privacy has finally emerged. However, some uncertainties remain. First, will a right `to be let alone' be protected under a separate privacy tort or equitable wrong and how might this be framed? Second, can commercial entities share in the privileges of a right of privacy? Third, what is the relationship between privacy and freedom of speech? Uncertainty is difficult to live with but, as the High Court has observed in elucidating a freedom of political communication as a constitutional norm, (2) there can be benefits to allowing opportunities for public discussion and debate before a conclusion is reached. (3) In this article I argue that, while a sui generis privacy doctrine might have advantages in terms of greater transparency, the breach of confidence doctrine has already proved to offer appropriate protection of private information (supplementing the protection of the person and physical property under the tort of trespass). Further, the doctrine's treatment of commercial privacy interests and freedom of speech is consistent with at least one version of a privacy rights theory.

II FROM BREACH OF CONFIDENCE TO A RIGHT OF PRIVACY?

Although the earliest breach of confidence cases were cases about privacy, and privacy claims under the aegis of that doctrine have continued to haunt the courts over the years, there was little elaboration of the nature of the interests being protected or the policy reasons for their protection. So, for instance, in the old English case of Prince Albert v Strange, (4) Lord Cottenham LC, having noted that `the property in an author or composer of any work, whether of literature, art or science, such work being unpublished and kept for his private use or pleasure cannot be disputed', (5) briefly added `[b]ut this case by no means depends solely on the question of property'. (6) The `private character of the work or composition' improperly obtained was sufficient to base a claim for breach of confidence when the defendant sought to publicly exhibit the Prince's etchings and publish a catalogue. (7) Later; in Argyll v Argyll, (8) Ungoed-Thomas J observed in passing that `there could hardly be anything more intimate or confidential than is involved in [the marriage] relationship, or than in the mutual trust and confidences which are shared between husband and wife' (9) as a reason to protect marriage confidences from unauthorised disclosure in a newspaper article. (10) And in Stephens v Avery, (11) the notorious `lesbian secrets case' of the 1980s (where the plaintiff's sexual relationship with another woman was published to the world by a former friend and confidant), (12) Browne-Wilkinson V-C simply said, `I can see no reason why information relating to that most private sector of everybody's life, namely sexual conduct, cannot be the subject of a legally enforceable duty of confidentiality'. (13) Certainly, it would seem that in Attorney-General v Guardian Newspapers Ltd [No 2] (14) Lord Goff had privacy interests particularly in mind when formulating the equitable doctrine to cover not only the normal case of confidential information imparted in a relationship of confidence (15) but also other situations where parties have notice, or are `held to have agreed', that the information is confidential `with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others'. (16) However, again, the nature of these interests and the particular policy reasons for their protection was not explained.

Such brevity has also been a feature of the Australian cases. For instance in Foster v Mountford & Rigby Ltd, (17) Muirhead J merely noted the plaintiffs' `genuine fear' that publication of the defendant's book containing confidential revelations made over the years by the plaintiffs of their tribal secrets `may further disrupt their social system, and that this fear is not based on fanciful grounds', (18) before finding the action for breach of confidence made out. Similarly, in G v Day (19) Yeldham J referred to `the elementary rules of propriety and of privacy' (20) as a reason to keep secret the plaintiff's identity as a police informant, but without explaining what such rules might entail, beyond that they supported the equitable doctrine's historical role in protecting `the personal, private and proprietary interests of the citizen'. (21) And, as recently as 1995, when in Breen v Williams (22) issues of both proprietary and privacy interests in information recorded by a doctor about a patient (the plaintiff who sought access to her medical file) were raised, it was acknowledged in the High Court that the doctrine of breach of confidence `extends to information as to the personal affairs and private life of the plaintiff, and in that sense may be protective of privacy' (23) But breach of confidence was not something the plaintiff claimed and the defendant's argument that the file contained information `private' to him (24) had no part to play in the High Court's conclusion that the plaintiff had no general entitlement to access the information. Rather, the defendant's property in the physical file was apparently reason enough for the law to support his control over the information within it. (25)

More recently, however, fuelled by the English accession to the European Convention on Human Rights, (26) English courts have begun explaining the protection of privacy interests under the equitable doctrine in the explicit language of rights. So, for instance, in Douglas v Hello! Ltd (27) Sedley LJ in the Court of Appeal, pointing to the fact that the Convention qualified its right of freedom of expression (28) by reference to a right enjoyed by everyone `to respect for his private and family life, his home and his correspondence', (29) held that under English law the latter right of privacy was `grounded in the equitable doctrine of breach of confidence'. (30) Already in the United States, and notwithstanding the omission of any reference to privacy as a right in the United States Constitution, it had long been accepted that the justification for the common law privacy tort there recognised (deriving in part from the US Constitution's right of security for person and property) was `the right to be let alone'. (31) In Douglas v Hello! Ltd, (32) Sedley LJ referred to the notion of the right to be let alone, and more particularly to be protected from `unwarranted intrusion into ... personal lives', as the core of a privacy right deriving from `the fundamental value of personal autonomy'. (33) Further, his Honour suggested, since this was a right the equitable doctrine already understood, to make this more explicit would simply (albeit usefully) add a label to what `our courts have ... said already over the years'. (34) In that case the fact that the plaintiffs, actors Michael Douglas and Catherine Zeta-Jones, had already sold the rights to photograph their wedding to another magazine meant they were unable to obtain an interlocutory injunction preventing the defendant from publishing their photographs, notwithstanding the surreptitious method by which they had been obtained. (35) On the balance of convenience, the prospect of a monetary remedy being granted at the final trial, should the plaintiff succeed, was sufficient to protect what were now largely commercial rather than privacy interests. (36) That the information as to how the wedding and those who attended appeared was confidential was not in doubt. Notwithstanding the presence of 250 wedding guests (albeit they were told they could not take photographs) there was still sufficient secrecy to make protection worthwhile. (37) Sedley LJ also noted that the plaintiffs had retained some of their privacy in keeping `a kind of veto over publication of OK [magazine's] photographs in order to maintain the kind of image which is professionally and no doubt personally important to them'. (38) Later English cases have continued the trend of drawing on the Convention's right of privacy as something supported by the breach of confidence action, although declining to follow Sedley LJ's obiter suggestion in Douglas v Hello! Ltd (39) that more open acknowledgment in the framing of the law might now be a welcome development. (40) In the process, the action has been transformed from one that offered such a subtly muted protection of privacy interests that it could be said there was `no right of privacy' recognised in the English courts, (41) to one...