Doe v ABC - A case note

Observers of media law and litigation will be well aware of the recent decision in Doe v ABC [VCC 281, 3 April 2007], wherein a sexual assault victim was awarded damages for the disclosure of her identity in an ABC news report. Even those who only have a cursory interest in the area of privacy law will be familiar with the facts of this case as it was the subject of a somewhat sensationalist Media Watch report that gave the impression that the decision of such significance that it will act as an impediment to free speech. The program even went as far as to assert that "the judgment creates a new duty of care for the media". But does Doe v ABC truly create a new duty of care, or is this assertion an exaggeration of the potential impact of the decision in order to make a more entertaining story?

The facts of the case are simple. A man was convicted of sexual assault. In reporting on his sentencing, ABC radio identified the names of the offender and the victim, the suburb in which the offence took place, and stated that the offence took place in the victim's home and described the offence as "rape within marriage". The reporting of these details were in clear breach of s.4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) , which makes it an offence to publish particulars identifying a victim of sexual assault. The journalists responsible for the report pleaded guilty to the offence and signed a written apology to the victim. The victim then sued the ABC seeking compensation for the disclosure of her identity.

The plaintiff's claim was based on several causes of action, including breach of duty of care, breach of statutory duty, breach of confidence and breach of privacy. The media coverage of the decision has tended to emphasise the privacy aspects of the case, hence the assertion that the judgment establishes a new duty of care. But the first half of the judgment deals with breach of statutory duty - a cause of action well-established in Australian common law. Although remarks later in the judgment are important in their potential influence on a putative tort of privacy, it is clear that, even if there were no such tort, the plaintiff would nonetheless have succeeded, since the defendants had a duty under the statute not to identify the victim and they had been convicted of failing to fulfil that duty. To the extent that the decision relies upon this cause of action the court cannot be said to have imposed any new duty of care beyond that which was already in existence, nor to have increased any impediment to free speech.

But the latter half of the judgment is more problematic. Several issues are addressed, but the most salient of these relate to the tort of breach of confidentiality. Citing the High Court's decision in Lenah Game Meats as authority, in addition to the UK cases of Douglas v Hello! and Campbell v MGM, Hampel J expressed the view that the cause of action for breach of confidentiality no longer requires a relationship of trust and confidence in order to succeed. In Hampel J's view, the obligation to maintain the confidentiality of information depends on the character of the information itself and the circumstances, which together give rise to a "reasonable expectation of privacy".

Significantly, Hampel J stated that information does not need to be secret in order to have the character for which there exists an obligation of confidentiality, and that, even where other people are aware of the information, it can be confidential in character. In the case of Doe v ABC the circumstances and confidential character of the information were created by the existence of s.4(1A) of the Judicial Proceedings Reports Act, which had the effect of making the information private even though it had been disclosed in open court.

Hampel J's remarks amount to the formulation of a new test for the tort of breach of confidentiality, whereby the bar for plaintiffs has been lowered and the standard for publishers has been significantly raised. Since the decision was at the level of the County Court, there remains the possibility that superior courts may choose not to adopt Hampel's formulation. However, to a significant extent Hampel J has done no more than implement a principle that was articulated by the High Court in Lenah Game Meats, as acknowledged by Hampel J. herself:

As Gleeson CJ's formulation of 'circumstances importing and obligation of confidence' recognises, it is no longer necessary for there to be a relationship of trust and confidence in order to protect confidential information. The obligation of confidence extends to a wider range of people, and is defined by reference to the circumstances, not a relationship.

Apart from concerns raised by the apparent broadening of the scope of the tort of breach of confidentiality, another aspect of the case which warrants critical consideration is Hampel J's treatment of the defendants' conduct. Hampel J acknowledged that the defendants had pleaded guilty to the charge of breaching the Act and had signed a written apology to the victim. But rather than treating this conduct as mitigating the injury to the plaintiff and therefore warranting a reduction in damages, Hampel J found that the apology amounted to an admission of liability. From a public policy perspective, this finding appears unhelpful, since it will have the effect of discouraging future defendants from seeking to resolve disputes promptly and amicably.

The decision in Doe v ABC raises again the prospect of a general acceptance by Australian courts of a common law tort of privacy. If the role of moulding such a putative tort were left to the courts, the formulation of the cause of action, and the defences to it, will reflect the views and biases of the judiciary, which often appears to be hostile to media defendants. If such a tort were seen as likely, a preferable course would be for the media to encourage governments to establish a statutory tort for breach of privacy. This may seem, at first blush, to be contrary to the media's interest in freedom of speech. However, if a privacy tort were defined by statute, it could incorporate workable defences. In addition to a strong public interest defence, a defence could be based on an appropriate offer-of-amends procedure. A clause could be inserted to specify that an apology does not constitute an admission of liability, and a conciliatory approach by a defendant should be taken into consideration as mitigating any damages awarded.

Inez Ryan

[Editor's notes: Inez Ryan is the Council's Policy Officer. The ABC has indicated an intention to appeal Hempel J's decision.]

For more information on privacy, go to
Privacy material on the website

[ return to top ]