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casetreasury

Wilson v Ferguson [2015] WASC 15

Facts: The plaintiff (Pl) and defendant (D) worked at Western Australian mining companies as fly-in-and-out employees. During their relationship, they sent naked photos and videos. The relationship broke down. D posed 16 naked photos and 2 videos of Pl on his Facebook without her consent. Many of Pl’s peers saw the content. Pl moved back in with her parents and was eventually terminated from her employment. Pl asked for an injunction and equitable compensation for distress, humiliation and anxiety on a breach of confidence action.


Held: The Court considered there was a breach of confidence but did not discuss whether a breach of privacy was available. The court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. In addition, Mason J regarded it as necessary to show that there will be an unauthorised use of the information to the detriment of the party communicating it.


Note: The existence of a requirement to show detriment has been doubted in subsequent cases.


Held (at [46] – elements for breach of confidence action in equity): 

  1. That the information was of a confidential nature

  2. That it was communicated or obtained in circumstances importing an obligation of confidence

  3. That there was an unauthorised use of the information.


It is clear that the equitable doctrine may be applied to images of a person, even where the images were created by the person sought to be restrained from disclosing the images.

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