Essay on "Equitable Doctrine of Confidence"

Essay 9 pages (2291 words) Sources: 14 Style: APA

[EXCERPT] . . . .

The judges again stated in obiter dictum that the precedent of Park Racing and Recreation Grounds Co. Ltd. v Taylor did not prohibit the court from championing a tort of privacy but held on the contrary that such rights were nonexistence.

The commentary of the judges in reaching the decision shows the need and the readiness of the Australian courts to give rise to the tort of invasion of privacy and an equitable remedy to the same. However, due to the slow nature of the progression of common law, the judges were somewhat reluctant to do so.

There were other cases after the Lenah Games Meat case that further developed the law of privacy. In Grosse v Purvis in which the court made a ruling stating categorically on how one should identify a cause of action. It includes an act of will by the Defendant, which intrudes upon the privacy or seclusion of the Plaintiff in such a way that it would be regarded to be highly offensive to the reasonable man. The action should be detrimental to the Plaintiff in the form of mental, psychological and emotional harm that causes the Plaintiff from acting in a manner he/she is entitled to act. This further identifies the shortcoming of the doctrine of confidentiality in solving some of the problems that an equitable doctrine of privacy could solve.

In Doe v Australian Broadcasting Corporation

in the County Court of Victoria where ABC published the name of a sexual assault victim together with the fact that her husband was in prison for raping contrary to the Judicial Proceedings Report Act of 1958 section 4(1 A). Hampel J. held that the Respondent was in breach of privacy and was required to pay damages for the tort. This case further elucidates on the fact that not all instances can rely on the doctrine of confidentiality hence the need for the law on privacy. Under the current circumstances, there was no direct, confidential relationship between the Applicant and the Respondent. Hence, the former doctrine not to use in creating a comprehensive cause of action that would ensure a win on the side of the Applicant. However, this case though a positive movement is of a lower court without enough influence so to speak to form precedent to the higher court.

In the case of Giller v Procopets

, the Appellant whose full names are Alma Giller lived cohabited with Boris Procopets in a de facto relationship from 1990 to 1993. During the time of their cohabitation, Procopets videotaped their sexual activities. At first, Giller was not aware of the fact that the Respondent was videotaping their sexual activities, and when she learned of the acquiesced to the act and further making video tapes. However, after their relationship broke, Procopets showed the tape to Giller family and friends. Thus, she sued him for breach of confidence, intentional affliction of mental harm as well as invasion of privacy.

Gillard J. gave an award of five thousand dollars in respect to the other assaults, but maintained that the law in Australia had not evolved to the point of recognizing a tort of invasion of privacy. On appeal, the court further held that it was even not necessary to try to ascertain whether Australia recognizes the tort of invasion especially because establishing the cause of action was to be a breach of confidence that was available and actually used by the Defendant to provide her with a suitable remedy.

This case provides an ideal example of an instance where there exists a confidential relationship between the Applicant and the Respondent hence no need of any other cause of action. However, the problem arises in instances where there has been a prima facie interference of X life by Y to the detriment of X, but the relationship between X and Y is not that of to impose a duty of confidence upon Y as in the case of Lenah Games Meat. Thus, is a gap in the law. Since there is a need to protect individuals who suffer harm be it emotional, psychological or financial harm as results of persons who act in such a manner as reveal information about themselves that would hurt their reputation or that of their business in a negative manner. Filling this gap, therefore, can be by the creation either through statutes or through common law of an equitable doctrine of confidence that would prohibit invasion of privacy.

References

United Nations (1948) Universal Declaration of Human Rights

Peter Bartlett (2010) Privacy Down Under: Journal of International Media and Entertainment

law Vol. 15 No. 1. Retrieved from

Australian Law Report Commission (2008) Australian Privacy Laws and… READ MORE

How to Reference "Equitable Doctrine of Confidence" Essay in a Bibliography

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