Law of Equity in Australia Essay

The Australian judicial system incorporates the Law of Equity. The High Court of Australia has the authority to hear cases that come under the purview of equity law and make decisions in those cases. The Equity and Common Law Divisions of the Supreme Court of New South Wales uphold the principles and maxims of equity as the cornerstones of the legal system. Whales are required to provide remedy under either common law or equity. In the present instance, Andy is accused of betraying Diego, a well-known football player. Brisbane Herald and Andy are seeking legal advice about equitable claims that may arise out of their action to use unsolicited pictures and materials of Diego and Adriana. The advise is considers the jurisdictional basis for the action, and it also considers whether the three essential elements for breach of confidence is demonstrated against Andy. Liability of Brisbane Herald Newspaper as a third party recipient addressed by the paper as well as assessing the defenses and remedies available against all parties.

Jurisdictional Basis for the Action

According to the Court in the Fraser v Evans the duty of confidence is concerned with the obligations enforced in equity, which arise out of the special relationship between disclose and confidant. This function is based on the on the principle of good faith that requires a person who receives information in faith not to take unfair advantage of that information, as was held in the case of Seager v Copydex LM. This doctrine does not depend on the existence of a fiduciary relationship or a contractual agreement. The courts are concerned with serving the people and ensuring that justice is done. The confidence of the litigants must be maintained in any proceedings. Diego and Adriana who met on Celebrity Happy House and discretely commenced a relationship bring the current action. The wife of Diego uncovered the secret affair, but they sought to deal with the matter at a family level after Diego promised to end his relationship with Adriana, who was also married. Unfortunately, Andy obtained pictures and other materials evidencing the relationship between Diego and Adriana after breaking into the office of Diego. She went ahead to break the passwords of the computer and obtained the pictures among other data and sold them tote Brisbane Herald newspaper for $175,000. The pictures and other information about the relationship of the parties are expected to hit the market shelves on the weekend.

The courts have held that the duty of confidence is of respective antiquity. Every person is entitled to the right to confidential information. The court has long held that right to sensitive information is to a large extent similar to proprietary rights. It was held in Phipps v Boardman that the right to the protection from disclosure of information might arise independently of any contractual or any proprietary right. In essence, this means that a person can move the court whenever a third party who intends to publish them, for their personal gains, obtains their confidential and private information. The courts consider the manner in which the information was obtained, if it was got in a way that suggests that there was a breach of confidence, then it issues orders restraining the recipient from communicating the information to another. The Australian Court system, in the matter of Moorgate Tobacco Co Ltd v Phillip Morris Ltd has recognized that equity is supposed to grant relief against real or contemplated threat of confidential information. The sensitive information of an individual has no proprietary value and should be afforded equitable doctrine remedies.

Breach of Confidence

According to Lord Nicholls in Campbell v MGN Ltd a breach of faith is a breach of duty that give rise to a civil claim. He pointed out that the law of confidence imposes a duty of confidence whenever a person gets hold of information he knows or has all reasons to know that it should be regarded as confidential and he goes along to disclose that information for personal gain. The law governing breach of confidence is complex, and the complexity will continue being observed as long as the technology is advancing. Three elements must be fulfilled to prove that there was the breach of confidence, the court in Coco v AN Clark (Engineers) Ltd considered the three elements that are, one, the information has the “necessary degree of confidence about it.” The second element is that the information was given in a manner that indicates or implies confidence; the third element is that unauthorized disclosure occurred. The Court in Murray v Yorkshire Fund Managers Ltd held that for a party to get an injunctive court order or declaration, it must prove that there was damage or that the information was disclosed without authority. The court in Faccenda Chicken Ltd v Fowler elaborated that the duty of confidence is only applicable to information that is not trivial or within the public domain.

Courts are mandated to ensure that the rights of individuals are not violated. The disclosure of private and confidential information is dealt away with if the duty to preserve is outweighed by other public interest factors in favor of disclosure. However, the courts must tread on this path cautiously otherwise it ends up promoting impunity and violation of human rights. Courts must balance public interest against the legal requirement to ensure there is no breach or violation of human right. Where it is deemed that revealing of information is necessary for the purposes of preventing or detecting crime, then such disclosure does not amount to the breach of confidence. This sentiment was also aired by the court in the matter of Malone v Metropolitan Police Commissioner, where the court further pointed out that there is no reason for restraining disclosure of confidential information where there is just cause or a genuine reason to disclose it. The position was reiterated in 1991 in the case of R v Crozier

The Necessary Degree of confidence about it

In the matter of Saltman Engineering Co v Campbell Engineering Co, the Court pointed out that where a person receives information which has “the necessary quality of confidence about it’ he is restrained from making unauthorized use of the information. The court explained that for information to be regarded to have ”the necessary quality confidence about it’ must not be information about it“ must not be information in public domain. It went ahead to say that the manner in which the way was imparted must demonstrate that the confidant knew or had all reasons to know that the information was confidential. In our instance case, Andy does not qualify to be a confidante of Diego, and she breaks into his office located in his home. She uses her computer expertise to break the security system (of passwords) put in place by Diego on his computer. Protection of the computer is a clear indication that Diego intended all the information and data stored in the computer to remain confidential. She manages to mine all the information in the computer of Diego. By breaking into the office, she had made up her mind that she is not concerned about the confidence or privacy of Diego and any information that she could get. According to Lord Greene in the case of Saltman Engineering Co Ltd v Campbell Engineering Co pointed out if it is proved that the defendant used confidential information whether directly or indirectly obtained from the plaintiff without their express or implied consent then the defendant is guilty of infringement of rights of the plaintiff.

Importing an Obligation of Confidence

The court was categorical in the case of Seager v Copydex Ltd that whoever receives the information of another person should not take unfair advantages of it and it is not sufficient to establish a breach of confidence. The court is concerned with determining whether the use of information was prejudicial to the person it was obtained. The information collected by Adrian about the sexual life of Diego is on the verge of breaking the marriage. The scandal that the family had prevented from happening will break the family right at the center if it is published. The banks are demanding for payment of loan that Diego used due to the revelation that he had spent the time with the model. The basis of equitable jurisdiction to offer protection obligations of confidence lies in a duty of conscience that arise from circumstances in which the information was obtained

There was no express or implied consent by Diego allowing Adriana to utilize the information he has stored in the computer. The court in Smith Kline & French Laboratories v Secretary, Department of Community Services and Health said that where the government is the plaintiff, it must establish detriment. Affected person comes to equity to vindicate his right to the observance of the obligation to restrain the defendants from posting or using their information.

Unauthorized Use or Disclosure

In Attorney-General v Jonathon Cape the court said that controlling unauthorized disclosure is meant to ensure that a plaintiff does not suffer. The person disclosing the information has no authority to give the information and the person receiving the information does not have the power to use the information. The pictures and other data are obtained through criminal activities that involve breaking into the house and then engaging in cybercrime of stealing unauthorized information. Adrian received the information about Diego and decided to sell them to Brisbane Herald for publication. The element of unauthorized disclosure is demonstrated through her action that is, her intention to gain financially and leave Diego suffering losses due to family breakage and tarnishing his reputation.

All the three elements have been proved inclusive, her action and intention sum it up all. Therefore, from the preceding, one is confident to claim that there was a breach of confidence of both Diego and Adriano. The fact that they are public personalities does not make them lose their privacy, and any information they hold as private and confidential should be treated as such.

Liability of the Brisbane Herald newspaper as a third party recipient

The Australian jurisprudence on the law of confidence has long favored the language of conscience. The Court in Attorney General v Guardian Newspapers (No 2) said that the duty of confidence is a duty of conscience arising from the circumstances through which the information is obtained or communicated. The third parties are subject to the principle of conscience. The same policy of protecting confidential information applies regardless of how the information was obtained. There is no secondary or derivative liability, and the third party is as liable as the person who breached confidence and supplied them with the information. The duty of confidence arises in an individual who has confidential information of another individual with knowledge that the information is confidential and that he owes a duty to the person who has the discretional power to deny access to sensitive information. The buyers of sensitive information are better off even without an ownership model of confidential information.

Sensitive information is adequately protected save where it is countervailing interest that justifies disclosure of such information. The court in the case of Sullivan v Sclanders has held that the duty of confidence extends to people who obtain confidential information surreptitiously. Even if you get sensitive information of another person accidentally, you are bound to treat it as private and confidential. Lord Keith, in Attorney-General v Guardian Newspapers Ltd, said that it is a general rule that third parties who get hold of sensitive information that they are bound to know as such has a duty not to pass the information to another person. These sentiments have been shared in the case of Australian Broadcasting Corporation v Lenah Game Meats

Gummow J, in the matter of Breen v Williams said that the third party’s duty arises in circumstances of disclosure. A plaintiff, that is Diego and Adriana does not confide with the Herald directly. The Newspaper is receiving the information from Andy , in British Sky Broadcasting Group plc v Digital Satellite Warranty Cover Ltd (In liquidation) the court entertained the idea that a party is bound conscience through sufficient knowledge of the wrong. Brisbane Herald newspaper is liable and duty-bound to treat the information it has received as confidential. The Herald has been pursuing the sexual scandal rumors of the plaintiffs for some time, the fact that they have paid the sum of $ 175,000 to obtain the picture and other data indicates that they are aware that they are receiving confidential information. They should treat the information as such, otherwise, by publishing the information, the newspaper becomes liable for breach of confidence and violation of the right to privacy.

Available Defenses

The current case of Andy and Herald Newspaper has no reasonable justification for the breach of confidence of information of a Diego and Adriana. A party can claim that the information has been published, in the case of Douglas v Hello the court observed that where the information has been published by another person and is on an extensive circulation is the adequate defense. In the instant matter, the court was informed that a film star was photographed with the help of a telephoto lens, lying naked by her private swimming pool. Various media outlet published the information, and the defendant sought to rely on the defense of wide publication. The court said that there was a need to prevent further publication even if the information was in public domain. Lord Philips stated that there is a need to differentiate between private information and other types of confidential information. Andy did not obtain the pictures and other information from the public domain, she just hacked the computer of Diego to harvest the information

However, a party claiming that the information is in public domain must demonstrate that the information was accessible to the public. The information about the sexual relationship of Adriana and Diego was with very few individuals. The court treats the information as confidential even if a journalist has leaked it. It has been held that a journalist has no direct obligation of confidentiality to a person who formerly confided the information. However, if the receiver of the information has a reason to believe that the information was confidential and the disclosure is unauthorized the court holds that the confidence binds the receiver. A publisher has a legal duty to check the status of information before publishing it, and it is not adequate for a defendant to inform the court that the information received was not within its knowledge.

Remedies

The parties to the suit have different remedies in the court of equity. These solutions range from the injunction, payment for damages and declaration. The other solutions are accounting for profit, delivery up and equitable compensation

Andy and Diego

The two superstars are bound to suffer irreparable harm if Herald and publicized publish the information. They can move the court seeking a declaration that the was a breach of confidence. A declaration serves to inform the parties that the breach should not be continued. It does not matter that the applicants are superstars who are public figures, they have a private life that must be safeguarded. In the case of Australian Broadcasting Corporation v, Lenah Game Meats Pty Ltd the court held that information obtained as a result of trespass ought to be treated in the same manner as confidential information.

Injunction and Damages, Adriana and Diego, can claim damages since their reputation stands to be destroyed once the matter is made public. Seeking the court to stop the publication of the information through injunction ensures that the information is not viable to the public. The court in the matter of Giller v Procopets said that both the parties to the proceedings are immoral in that they lie, deceive and mislead. However, they are entitled to the protection of the law when there is a threat of infringing their right to have the confidential information to held as such. In the matter of Giller, the defendant recorded himself having a sexual affair with the applicant in the privacy of a bedroom. The taping was without the knowledge and consent of the applicant, and the defendant sought to distribute the information to the public and the family members. Ms. Giller sued to cite breach of confidence, intentional infliction of emotional distress and invasion of her right. The Court of Appeal declined the claim of infliction of emotional distress and invasion of privacy. However, the court observed that there was a breach of confidence was available to the applicant. Neave J pointed out that Ms. Giller has the right to compensation on the ground of breach of confidence.

Herald and Andy

Herald can claim for compensation for the money they have paid to Adriana for obtaining the information that the court has issued a permanent injunction to publish or circulate. Where Diego and Andy have requested the court to issue permanent injunction and compensation, the Herald can seek to recover the amount from Adriana. However, Adriana can counter the claim by Herald, citing ignorance of law; the law provides that a person who receives information that it ought to treat as confidential should treat it as such. The newspaper has been seeking the information about the sexual scandal of Diego and Andy, the information they obtain through dubious manner.

Conclusion

A claim of breach of confidence occurs when a person passes information about the other individual to a third party without the assent of the owner. The Court have long held that every person has the right to dignity and privacy protected. If a person comes across the information of another person that falls within the confines of confidential information, they should not reveal that information to anyone. A breach of confidence gives rise to a tort that is actionable in courts of equity. The aggrieved party can seek compensation, the permanent injunction preventing publication, publicizing or circulation of the information.

Bibliography

Air Canada v M & L Travel Ltd [1993] 3 SCR 787

Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109

Attorney-General v Jonathon Cape [1976] QB 752

Australian Broadcasting Corporation v Lenah Game Meats(2001) (2001) 208 CLR 199

Australian Broadcasting Corporation v, Lenah Game Meats Pty Ltd (2001) 208 CLR 1991

Breen v Williams(1996) 186 CLR 71

British Sky Broadcasting Group plc v Digital Satellite Warranty Cover Ltd (In liquidation)[2012] EWHC 2642

Campbell v MGN Ltd [2004] A.C.457

Coco v AN Clark (Engineers) Ltd. [1969] RPC 41

Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50

Douglas v Hello [2005] EWCA Civ 595

Duchess of Argyll v Duke of Argyll (1964) [1967] Ch 302 [1965] 1 All ER 611

Faccenda Chicken Ltd v Fowler [1987] Ch. 117

Foster v Mountford (1977) 14 ALR 1

Fraser v Evans [1969] 1All ER 8 at 22

Gartside v Ourfam [ 1856] 26 LJ Ch113

Giller v Procopets (2008) 24 VR 1

Ingerfirm Comparison (Australia) Pry Ltd v Law Society of New South Wales [1975] 2NSWLR 104 at 120

Keech v Sanford. In Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd (No 3) [2007] FMCA 748

Lord Ashburton v Pape [1913] 2 Ch 469, 475

Malone v Metropolitan Police Commissioner [1979] 2 WLR 700

Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414

Murray v Yorkshire Fund Managers Ltd [1968] 1 WLR 951

Phipps v Boardman[1967] 2 AC 46

R v Crozier [1991] Crim LR 138, CA

Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 (PC).

Saltman Engineering Co v Campbell Engineering Co [1948] 65 RPC 205

Seager v Copydex LM [1967] 1 WLR 923 at 93

Smith Kline & French Laboratories (Australia) Ltd & Alpha Pharm Pty Ltd v Department of Community Services (1990) 95 ALR 87

Sullivan v Sclanders (2000) 77 SASR 419