Giller v. Procopets: Australia’s Privacy Protection Shows Signs of Improvement

Tort Law Review, Vol. 17, No. 1, p. 16, 2009

Monash U. Department of Business Law & Taxation Research Paper No. 32

Posted: 11 Apr 2011

See all articles by Normann Witzleb

Normann Witzleb

Monash University - Faculty of Law; The Chinese University of Hong Kong

Date Written: 2009

Abstract

In Giller v. Procopets, the defendant sought to harass and humiliate his former de facto partner by distributing video recordings depicting them engaged in sexual intercourse. At first instance, Ms Giller failed in her claim for mental distress damages on the basis of breach of confidence, intentional infliction of injury or an invasion of privacy because there were no Australian precedents allowing such awards. Following recent English authorities, the Victorian Court of Appeal accepted the claim in breach of confidence and awarded Ms. Giller $40,000 for injury to feelings, including$10,000 aggravated damages. The plaintiff’s success in breach of confidence allowed the court to leave open whether Australian law should recognize a common law right to privacy. By majority, the court also denied recovery for intentionally causing emotional distress falling short of psychiatric injury. The fact that mental distress damages are now available under breach of confidence has strengthened the status of this cause of action as a quasi-privacy tort.

Keywords: Giller v Procopets, mental distress damages, aggravated damages, common law, right to privacy, breach of confidence

JEL Classification: K00, K10, K13, K19, K30, K40, K49

Suggested Citation

Witzleb, Normann and Witzleb, Normann, Giller v. Procopets: Australia’s Privacy Protection Shows Signs of Improvement (2009). Tort Law Review, Vol. 17, No. 1, p. 16, 2009, Monash U. Department of Business Law & Taxation Research Paper No. 32, Available at SSRN: https://ssrn.com/abstract=1805391

Normann Witzleb (Contact Author)

The Chinese University of Hong Kong ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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