Social media: a breach of confidence?

Wilson v Ferguson [2015] WASC 15

The Supreme Court of Western Australia has found that individuals in a close relationship may owe one another equitable obligations of confidence, particularly in circumstances where intimate and private information is exchanged in a social media context.  A breach of that obligation may bring about liability for substantial damages awards. 

In Wilson v Ferguson [2015] WASC 15, the Western Australia Supreme Court awarded damages of $50,000 for humiliation, anxiety and stress suffered by the Plaintiff after a jilted ex-lover posted confidential (and explicit) photographs and videos on Facebook.  The Court also made orders restraining the Defendant from publishing further photos and videos.

Breach of confidence

There are three essential elements of an action for breach of confidence:

• there must be information which has a quality of confidence (that is, the information is not common or public knowledge)
• the information must be imparted in circumstances where there is an obligation of confidence, and
• there must be an unauthorised use of that information, to the detriment of the person communicating it.

Background

The Plaintiff and Defendant were ‘fly-in fly-out’ workers at a mine site in north west Western Australia.  During the course of their relationship, the couple would regularly send each other explicit photographs of themselves.  However, on one occasion, the Defendant emailed himself videos of the Plaintiff from her mobile phone without her knowledge.  He admitted his actions to the Plaintiff who became angry and upset and asked the Defendant to make sure nobody else saw the videos.  At that time, the Defendant agreed that no one would see the videos.

 

Subsequently, the Plaintiff suspected infidelity by the Defendant and ended their relationship via text message while at work.  The Defendant proceeded to post explicit photos and videos of the Plaintiff on his Facebook page.  The Defendant had approximately 300 Facebook friends, many of whom worked with both the Plaintiff and Defendant. On the same day, the Plaintiff (who was not a Facebook user) received a number of telephone calls about the Defendant’s post, and sent a number of text messages to the Defendant pleading for him to remove the photos.  They were subsequently removed that evening.

 

Decision

The Court found the publication of the photos and videos to Facebook amounted to a breach of the equitable obligation the Defendant owed to the Plaintiff to maintain the confidentiality of the images.  The Court found that the intimate nature of the personal relationship gave rise to a relationship of trust and confidence which was sufficient to impose an equitable obligation of confidence on the parties.

 

The intimate images of the Plaintiff clearly had the necessary element of confidence and the circumstances in which they were obtained by the Defendant were such to impose upon the Defendant an obligation to maintain that confidentiality.  This was confirmed by the fact the Plaintiff asked the Defendant to agree to make sure nobody else saw the photographs.  It was also established that the Defendant misused the images by posting them on his Facebook page with the motive of causing embarrassment and distress to the Plaintiff in response to her ending the relationship.

Lucy Kennedy, Tim Case