"Phone hacking": what's legal? Part 2: Remedies

Posted by Tarryn Ryan, Nick Petrie and Veronica Scott

In the first part of our post-News of the World series of posts, we looked at the techniques which were used by News of the World journalists and/or private investigators they hired to access the voicemails of targets and relevant offences under the Australian Commonwealth Telecommunications (Interception and Access) Act 1979 and Criminal Code.

In this second part of our series, we look at what remedies victims of these offences may have under breach of confidence and breach of privacy laws and the development.

Elements of breach of confidence

In Australia, for a person to prove that an unauthorised access of their voicemail messages was a breach of their confidence, they would have to show that the information in the message:

• had the requisite quality of confidence; 
• was obtained or received by the journalist/media organisation in circumstances importing an obligation of confidence on those recipients; and
• was disclosed, or threatened to be disclosed, in an unauthorised manner. Disclosure would clearly include publication by the media.

Following the 2001 High Court decision in ABC v Lenah Game Meats (the ABC case), any obligation of confidentiality would not depend on a direct relationship existing between the journalist or other third party who accessed the voicemail messages and the target, or indeed the person who left the voicemail.

The obligation of confidence would extend to any third party who received the information, if that third party knew, or ought to have known that the information was confidential given the manner in which the information was obtained. Applying this to the News of the World scenario, a journalist, who personally, or through an investigator, accesses a target's voicemail, may have an obligation of confidentiality to that target or the person who has left the message, despite not having a direct relationship with these people.

Requisite quality of confidence

The main challenge for an aggrieved person in this scenario would be showing that the information has the requisite quality of confidence. In the ABC case, images of possums being killed and processed in a factory were recorded in an unauthorised and illegal manner. However, it was held by the High Court that, as the images obtained did not disclose any confidential or commercially secret information, the quality of confidence threshold was not met. Chief Justice Murray Gleeson noted that, when information does not have the requisite quality of confidence 'that the information was tortiously obtained in the first place is not sufficient to make it unconscientious of a person into whose hands that information later comes to use it or publish it.'

Applying this to the access of voicemail messages, it is fair to say that just because someone accessed another person's voicemail account in what may be considered to be an immoral or illegal manner, does not mean that a breach of confidence has occurred. The central issue will be the nature of the information that was obtained.

Some information accessed on voicemail messages, such information relating to sexual relationships, a person's health, or that is subject to a police investigation, would be likely to be considered confidential. On the other hand, if a voicemail message was accessed that only disclosed information about what someone was cooking for dinner, it is less likely that this information would be considered to have the requisite quality of confidence. While information such as this is unlikely to be newsworthy, even if it were published, no breach of confidence will occur.

It is important to note that if confidential information is accessed but not disclosed, or threatened to be disclosed, there can be no breach of confidence.

Defences

There are also two defences that a journalist can seek to rely on in disclosing information that would otherwise be a breach of confidentiality: 

• the limited defence for disclosure of 'iniquities': the disclosure must be proportionate to the crime, wrong or misdeed of public importance committed. This would generally mean that disclosure would have to be to the police or other authority with the 'proper interest' to deal with the iniquity. Disclosure of the information by publication in a newspaper would probably be disproportionate; and
• the information is already in the public domain: a journalist may assert that information obtained in a voicemail message could not be considered confidential because it is already in the public domain. The extent of dissemination and forum of publication will be relevant to this argument. The Victorian Supreme Court case of Australian Football League v The Age Company Ltd suggests that a journalist would have a stronger public domain argument if the information that they obtained in a voicemail had already been published in the 'traditional' media, rather than merely on internet chat forums.

Remedies

A key remedy available for breach of confidence is an injunction restraining the disclosure of the confidential information. If a person came to know that their voicemail account had been hacked they could seek to have disclosure or publication of that information restrained. Once a breach of confidence has occurred the aggrieved party may seek compensatory damages. Following the Victorian Court of Appeal decision in Giller v Procopets, it appears that a successful plaintiff in a breach of confidence claim could be awarded substantial damages for emotional distress, hurt or embarrassment caused by a breach. In this case, the plaintiff was awarded $40,000 for breach of confidence, which included $10,000 for aggravated damages, after her former partner disclosed to third parties a video depicting sexual activity between the two.

Claim for breach of privacy?

Unlike New Zealand, there is no general tort of privacy in Australia. In the ABC case, the High Court left the door open to the development of a tort of privacy in Australia, but found there could have been no invasion of privacy in that case. Justices Gummow and Hayne stated that any development in relation to a standalone tort of privacy in Australia would be to 'benefit of natural, not artificial, persons.' As the plaintiff in that case was a company, it was unnecessary to determine whether a tort existed. Furthermore, in Giller v Procopets the Victorian Court of Appeal found that it was unnecessary to determine whether a tort of privacy exists in Australia, because the plaintiff's were able to seek redress under breach of confidence.

Where a person can seek redress in breach of confidence after their voicemail account has been accessed without authorisation, it is questionable whether a court would find that there has been a breach of privacy. Whilst the Commonwealth Privacy Act 1988 protects unauthorised accessing and misuse of people's personal information, there is an exemption for the media and the Act has limited sanctions. However, the current debate about media regulation in Australia, following the closure of News of the World, has reignited the discussion regarding the desirability of a statutory tort of privacy. 

Latest developments

This has added fuel to the recommendation of the Australian Law Reform Commission (ALRC) in May 2008 following its reveiw of the operation of the Privacy Act, that a statutory cause of action for serious invasion of privacy should be enacted in Australia. The Federal Government's position had been that this was not yet a priority in privacy reform. However, the Federal Home Affairs Minister, Brendan O'Connor, has just announced the launch of a consultation period for privacy reform with a discussion paper to be released shortly.

The lack of a consititutional guarantee of freedom of speech in Australia, such as that enshrined in the US in the First Amendment to the Constitution in the Bill of Rights and Article 10 of the EU Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998) will mean that any new law will need to provide this protection at the very least. Further, whilst described as being ad hoc, the benefit of the common law, which was recognised by the ALRC when it first considered the introduction of a tort of privacy in 1979, was that courts could develop jurisprudence in this area. This means they can evolve and distil principles to respond  these issues as they arise and provide protections and defences as are desireable on a case by case basis (which they have been doing, as can be seen from recent decisions in the UK such as Naomi Campbell and Max Mosley, and those Australian cases referred to above).

A statutory tort would struggle to cover the field, made more difficult by the speed of technological development, as has been experienced with the application of the Privacy Act. Also as Chief Justice Gleeson said in the ABC case, one of the reasons for proceeding cautiously is, 'the lack of precision of the concept of privacy', when deciding what would be a serious intrusion on a person's privacy.

The next and final piece in our post-News of the World series will deal with the application to the media of existing statutory data privacy laws and the regulation of the recording of conversations.

Partner: David Poulton