The likely future development of the action for breach of confidence

12.6 In ABC v Lenah Game Meats Gleeson CJ appeared to foreshadow that the equitable action for breach of confidence may be the most suitable legal action for protecting people’s private information from disclosure, stating:

[E]quity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. And the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to ‘restrain the publication of confidential information improperly or surreptitiously obtained’. The nature of the information must be such that it is capable of being regarded as confidential. A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information …

If the activities filmed were private, then the law of breach of confidence is adequate to cover the case … There would be an obligation of confidence upon the persons who obtained [images and sounds of private activities], and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained …

The law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy.

55. For reasons already given, I regard the law of breach of confidence as providing a remedy, in a case such as the present, if the nature of the information obtained by the trespasser is such as to permit the information to be regarded as confidential.[3]

12.7 Gummow and Hayne JJ, with whom Gaudron J agreed, considered a broader range of privacy invasions and left open the direction that the future development of the law protecting privacy may take:

In the present appeal Lenah encountered … difficulty in formulating with acceptable specificity the ingredients of any general wrong of unjustified invasion of privacy. Rather than a search to identify the ingredients of a generally expressed wrong, the better course, as Deane J recognised [in Moorgate Tobacco Ltd v Philip Morris Pty Ltd (No 2)[1984] HCA 73; (1984) 156 CLR 414, 444-445], is to look to the development and adaptation of recognised forms of action to meet new situations and circumstances …

Lenah’s reliance upon an emergent tort of invasion of privacy is misplaced. Whatever development may take place in that field will be to the benefit of natural, not artificial, persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement, ‘free from the prying eyes, ears and publications of others’. Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome.[4]

12.8 Despite this influential and open invitation to the courts to develop further protection, there has been only isolated development at common law of further privacy protection in Australia, as discussed in Chapter 3 above, making it difficult to predict the precise direction of future developments.[5] Both of the proposals in this chapter assume that, in the absence of a statutory cause of action, the development of the equitable action for breach of confidence is the most likely way in which the common law may, in time, develop greater protection of privacy in relation to disclosure of private information.