Obiter

Wilson v Ferguson [2015] WASC 15

In Wilson v Ferguson,¹ the Supreme Court of Western Australia held that the defendant breached his obligation of confidence by posting sexually explicit images of the plaintiff on Facebook, without consent. The plaintiff was awarded equitable compensation for both emotional distress and economic loss.

COURT: Supreme Court of Western Australia (Mitchell J).

PARTIES: Wilson (Plaintiff), Ferguson (Defendant).

FACTS:

1. Wilson and Ferguson began an intimate relationship while working at a WA minesite.²
2. Both exchanged sexually explicit images of each other via their mobile phones.³
3. Ferguson accessed Wilson’s mobile without her consent, obtaining two explicit videos, emailing copies to himself.⁴ Wilson asked Ferguson to ensure nobody else see the videos.⁵
4. After Wilson ended the relationship, Ferguson posted 16 sexually explicit photos and two videos of Wilson on Facebook; and sent messages such as “Can’t wait to watch you fold as a human being”.⁶
5. Wilson suffered embarrassment, humiliation, anxiety, and financial loss due to the publication.⁷

ISSUES:

The primary issue was whether the defendant’s actions of publishing sexually explicit photos and videos (“images”) of the plaintiff on the Internet (Facebook) constitutes an equitable breach of confidence?

If so, whether the plaintiff is entitled to equitable compensation for emotional distress — in the form of embarrassment, anxiety, and distress — where emotional distress is not a recognised psychiatric or psychological injury?⁸ Whether to issue an injunction? Whether to award aggravated damages, damages for economic loss, and indemnity costs?⁹

LEGAL PRINCIPLES:

Breach of Confidence Principles:

Mitchell J applied breach of confidence principles as described by Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 (‘Fairfax‘):¹⁰

The court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.¹¹

Breach of Confidence Elements:

The essential elements of an action in equity for breach of confidence are:

[1] the information was of a confidential nature;
[2] it was communicated or obtained in circumstances importing an obligation of confidence; and
[3] an unauthorised use of the information.¹²

Mitchell J noting that subsequent courts have expressed doubt about Mason J’s requirement in Fairfax,¹³ that it is necessary to show an unauthorised use of the information to the detriment of the party communicating it.¹⁴

Equitable Doctrine to Protect Confidential Information:

In applying the equitable principle ‘to protect the personal, private and proprietary rights of the citizen, to government information’ (Fairfax), the Court focused on confidential information the plaintiff seeks to protect, in the form of her explicit images.¹⁵ Mitchell J said at [47]:

It is clear the equitable doctrine may be applied to images of a person, even where the images were created by the person sought to be restrained from disclosing the images. ¹⁶

In ABC v Lenah Game Meats [2001] HCA 63, Gleeson CJ observed at [34] that private images surreptitiously obtained may constitute confidential information and that:

The nature of the information must be such that it is capable of being regarded as confidential. A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information. [34]

The principle upon which equity acts to protect information imparted in confidence may also be invoked to ‘restrain the publication of confidential information improperly or surreptitiously obtained.’¹⁷

Mitchell J cited developing cases restraining publication of private information comprising of images: etchings in Prince Albert v Strange (1849),¹⁸ negatives in Pollard v Photographic Company (1888),¹⁹ polaroids in Duchess of Argyll v Duke of Argyll (1967),²⁰ video images in Kwok v Thang (1994),²¹ film in ABC v Lenah Game Meats (2001),²² and video tape in Giller v Procopets (2008).²³

Equitable Compensation:

Mitchell J considered the equity approach of compensation more than the common law approach of damages for emotional distress falling short of recognised psychiatric injury available only in limited circumstances (see, for example, Doe v ABC [2007] VCC 281).²⁴

His Honour identified Giller v Procopets [2008] VSCA 236 (‘Giller’), the Victorian Court of Appeal the only superior court (at the time) considering the issue of equitable compensation,²⁵ for emotional distress (including aggravated damages) as an available remedy in exercising the court’s equitable jurisdiction.²⁶

In observing Farah Constructions Pty Ltd v Say-Dee Pty Ltd,²⁷ Mitchell J interpreted the decision in Giller not plainly wrong, agreeing with the High Court’s conclusion, and representing Australian development in extending relief available.²⁸ The plaintiff relies on breach of confidence and equitable principles applied in Giller.²⁹ 

COURT’S REASONING:

BREACH OF CONFIDENCE:

Mitchell J determined that the defendant’s actions is a breach of his equitable obligation owed to the plaintiff to maintain confidentiality of the images.³⁰ His Honour’s reasoning:

(a) Confidential nature

The nature of images explicitly suggested a quality of confidence (at [56]). Explicit images privately taken and shared between two lovers ordinarily bare a confidential character and implicitly be provided on condition they are not shown to any third-party.³¹ The images were not in the public domain prior to the publication.³²

(b) Obligation of confidence

The defendant obtained the images by emailing copies to himself without the plaintiff’s consent or knowledge be ordinarily sufficient to import an obligation of confidence.³³ The plaintiff’s statements prior to disclosure were clearly provided on the basis that the images are not to be shared with others.³⁴

(c) Misuse of images

The defendant misused the images by posting to Facebook, accessible to hundreds of people, for the motive of embarrassment and distress in response to the plaintiff ending the relationship. The plaintiff proved disclosure was to her detriment deeply distressing, resulting in taking time off work and undertake counselling to cope with her distress.³⁵

Giller v Prococets [2008] VSCA 236:³⁶ Mitchell J compared the circumstances analogous to Giller, where the defendant videotaped his former de facto partner in sexual encounters, some with consent and some recorded surreptitiously. After the plaintiff ended the relationship, the defendant threatened and distributed the physical video tapes to others.³⁷

Mitchell J applied Giller in extending the equitable doctrine of breach of confidence, taking into account recent technological advancements and the now largely obsolete method of video tape used in Giller.³⁸

His Honour further recognised that in 1996 the court’s difficulty in predicting the current persuasiveness of the Internet and social media in Australian society, where sharing of explicit images between romantic couples is “not uncommon”, noting the term “sexting”.³⁹

REMEDIES AND DAMAGES:

Injunctive relief: In recognising Prince Albert,⁴⁰ Pollard,⁴¹ and Duchess of Argyll,⁴² Mitchell J found no reason to deny the plaintiff injunctive relief to restrain publication.⁴³ The defendant’s past conduct giving rise to reasonable apprehension conduct may be repeated, allowing for third parties obtaining copies of the images.⁴⁴

Equitable compensation: Mitchell J determined equitable compensation appropriate for significant embarrassment, anxiety and distress from the plaintiff’s images disseminated in her workplace and social group.⁴⁵ Although the plaintiff did not sustain a psychiatric injury, the award amount should not be disproportionate to those awarded in tortious personal injury cases.⁴⁶

Aggravated damages: The defendant’s conduct amounted to aggravated circumstances due to disclosure an act of retribution in response to the plaintiff ending the relationship, intending to cause her harm.⁴⁷

Economic cost: The Court accepted the plaintiff’s time off work, with loss of wages due to the publication.⁴⁸

Indemnity costs: No indemnity costs awarded based on the principles governing award.⁴⁹

DECISION:

Mitchell J held Ferguson liable for breaching his equitable obligation of confidence by posting Wilson’s sexually explicit confidential images and videos on Facebook without her consent.⁵⁰ An injunction was issued to prohibit further publication.

Wilson was awarded equitable compensation for breach of confidence, non-economic loss (sustained in the form of embarrassment, anxiety, distress),⁵¹ aggravated damages, and economic loss. No damages were awarded under the Lord Cairns’ Act, as no claims made under s 25(1).⁵² No costs were awarded on an indemnity basis.⁵³

ORDERS:

Mitchel J ordered:

1. Injunction restraining defendant from publishing in any form “any of the photographs and videos” of the plaintiff.⁵⁴
2. Defendant to pay plaintiff $48,404 equitable compensation for non-economic loss, aggravated damages, economic loss.⁵⁵
3. Defendant to pay plaintiff’s costs on action.⁵⁶

LEGAL SIGNIFICANCE:

Wilson v Ferguson [2015] WASC 15 addressed the unauthorised disclosure of private information in the context of “revenge pornography” on the Internet. This case distinguished confidential image misuse with the advancement of technology from video tape used in Giller v Procopets [2008] VSCA 236 to unauthorised posting of sexually explicit images and videos on social media (Facebook) — with the plaintiff awarded equitable compensation for both emotional distress and economic loss for the breach of confidence.

COMMONWEALTH LEGISLATION:

At the time of judgment in Wilson v Ferguson [2015] WASC 15, there was no Commonwealth statute targeting non-consensual sharing of intimate images. It wasn’t until 2018 that section 474.17A was introduced into the Criminal Code Act 1995 (Cth),⁵⁷ which made it a criminal offence to transmit sexual material using a carriage service without consent.⁵⁸ Section 474.17A provides:

Offence
(1) A person (the first person) commits an offence if:
(a) the first person uses a carriage service to transmit material of another person; and
(b) the other person is, or appears to be, 18 years of age or older; and
(c) the material depicts, or appears to depict:
(i) the other person engaging in a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) a sexual organ or the anal region of the other person; or
(iii) if the other person is female—the other person’s breasts; and
(d) the first person:
(i) knows that the other person does not consent to the transmission of the material; or
(ii) is reckless as to whether the other person consents to the transmission of the material. …
Penalty: Imprisonment for 6 years.⁵⁹

The Online Safety Act 2021 (Cth) commenced on 23 January 2022, and provides for non-consensual posting of intimate images and threats.⁶⁰ Section 75 provides:

(1) A person (the first person) who is an end‑user of:
(a) a social media service; or
(b) a relevant electronic service; or
(c) a designated internet service;
must not post, or make a threat to post, an intimate image of another person (the second person) on the service if:
(d) the first person is ordinarily resident in Australia; or
(e) the second person is ordinarily resident in Australia. …

Consent
(2) Subsection (1) does not apply if the second person consented to the posting of the intimate image by the first person. …⁶¹

QUEENSLAND LEGISLATION:

The Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2019,⁶² introduced new offences criminalising the non-consensual distribution of intimate images and recordings, punishable by up to three years imprisonment.⁶³ Notable provisions in the Criminal Code Act 1899 (Qld) include:⁶⁴

• Distribution of intimate images — s 223
• Observations or recordings in breach of privacy — s 227A
• Distributing prohibited visual recordings — s 227B.
• Threats to distribute intimate image or prohibited visual recording — s 229A.

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FOOTNOTES:

1. Wilson v Ferguson [2015] WASC 15 (‘Wilson‘). ↩︎
2. Ibid 6 [18]–[21]. ↩︎
3. Ibid 7 [22]. ↩︎
4. Ibid [23]. ↩︎
5. Ibid [23]–[24]. ↩︎
6. Ibid 8 [27]–[28], [30]. ↩︎
7. Ibid 9 [38]–[42]. ↩︎
8. Ibid 18 [70]–[72]. ↩︎
9. Ibid 10 [40]. ↩︎
10. Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 (‘Fairfax’). ↩︎
11. Wilson (n 1) 11 [43]; Fairfax (n 10) 51. ↩︎
12. Wilson (n 1) 12 [46]; Western Australian Newspapers Ltd v Bond [2009] WASCA 127, (2009) 40 WAR 164, [41]. ↩︎
13. Fairfax (n 10). ↩︎
14. Wilson (n 1) 11 [43]; Fairfax (n 10) 51. ↩︎
15. Fairfax (n 10) 51. ↩︎
16. Wilson (n 1) 11 [44]. ↩︎
17. Fairfax (n 10) 50, Mason J citing Lord Ashburton v Pape [1913] 2 Ch 469, 475 per Swinfen Eady LJ. ↩︎
18. Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171 (‘Prince Albert‘). ↩︎
19. Pollard v Photographic Company (1888) 40 Ch D 345 (‘Pollard‘). ↩︎
20. Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302, 320–232 (‘Duchess of Argyll‘). ↩︎
21. Kwok v Thang [1994] NSWSC 1034 [38]. ↩︎
22. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 (Gleeson CJ) (‘Lenah Game Meats’). ↩︎
23. Giller v Procopets [2008] VSCA 236 (‘Giller‘). ↩︎
24. Wilson (n 1) 17–18 [72]–[73]; Lenah Game Meats (n 22) [40] [132]; Doe v ABC [2007] VCC 281. In this Victorian case, the plaintiff suffered a psychiatric injury, more than emotional distress, for the disclosure of her private information. ↩︎
25. Giller (n 23); Wilson (n 1) 18 [73]. The only case Mitchell J could locate at the time. ↩︎
26. Wilson (n 1) 18 [73]; Michael Bryan, ‘Breach of Confidence’ in Equity and Trusts in Australia (2017) 195. ↩︎
27. Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22. The High Court held that ‘intermediate appellate courts and trial judges in Australia should not depart from decisions in another jurisdiction in relation to non-statutory law unless they are convinced the interpretation is plainly wrong’. ↩︎
28. Wilson (n 1) 13 [54]. ↩︎
29. Giller (n 23); Wilson (n 1) 13 [54]. ↩︎
30. Wilson (n 1) 14 [55]. ↩︎
31. Ibid [56]. ↩︎
32. Ibid; See Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414, 438. ↩︎
33. See Wilson (n 1). ↩︎
34. Wilson (n 1) 47 [57]. ↩︎
35. Ibid 15 [59]. ↩︎
36. Giller (n 23); David Lindsey, ‘Casenote: Giller v Procopets – Distress but no damages’ [2024] PrivLawPRpr 41; (2004) 11(3) Privacy Law and Policy Reporter 86. ↩︎
37. Giller (n 23). ↩︎
38. Wilson (n 1) 20 [79]. ↩︎
39. Ibid. ↩︎
40. Prince Albert (n 18). ↩︎
41. Pollard (n 19). ↩︎
42. Duchess of Argyll (n 20). ↩︎
43. Prince Albert (n 18); Pollard (n 19); Duchess of Argyll (n 20); Wilson (n 1) 15–16 [60]–[62]. Mitchell J at [64], noted the transitory nature of electronic medium of images on Facebook making it difficult to ascertain and identify the photographs and videos. ↩︎
44. Wilson (n 1) 15–16 [61]. ↩︎
45. Ibid 22 [85]. ↩︎
46. Ibid. ↩︎
47. See Wilson (n 1). ↩︎
48. Ibid. ↩︎
49. Ibid. ↩︎
50. Wilson (n 1) 15 [59]. ↩︎
51. Ibid 22 [85]. ↩︎
52. Ibid [86]; Supreme Court Act 1935 (WA) s 25(1). ↩︎
53. Wilson (n 1) 22 [88]; Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S). ↩︎
54. Wilson (n 1) 15–16 [63]–[64], 24 [93]. ↩︎
55. Ibid 22 [85]. ↩︎
56. Ibid 22–23, [87]–[90]. ↩︎
57. Criminal Code Act 1995 (Cth) s 474.17A. ↩︎
58. Attorney-General’s Department (Cth), Criminalisation of the Non-Consensual Sharing of Intimate Images (Web Page, 19 May 2017) <https://www.ag.gov.au/crime/cybercrime/criminalisation-non-consensual-sharing-intimate-images>. ↩︎
59. Criminal Code Act 1995 (Cth) s 474.17A. ↩︎
60. Online Safety Act 2021 (Cth) endnote 3, ‘Legislation History’ in Federal Register of Legislation (as at 23 January 2022) <https://www.legislation.gov.au/C2021A00076/2022-01-23/2022-01-23/text/original/pdf>. ↩︎
61. Online Safety Act 2021 (Cth) s 74. ↩︎
62. Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2019 (Qld), Act No. 1 of 2019. ↩︎
63. Ibid; Criminal Code Act 1899 (Qld). ↩︎
64. Criminal Code Act 1899 (Qld) ss 223, 227A, 227B, 229A. ↩︎