Gain-Based Relief for Breach of Privacy

This paper considers why awards of gain-based relief for breach of privacy are uncommon. There are three reasons for this. First, there are arguably two possible measures of gain-based relief: the reasonable fee and the account of profits. In relation to the latter, the account of profits is a personal remedy, but the proprietary constructive trust can also sometimes be used to achieve a similar result. Second, there is uncertainty about the nature of the cause of action, particularly in Australia. The availability of specific kinds of gain-based relief has generally been predicated on the historical origin of the particular cause of action. Unfortunately, the categorisation of breach of privacy is uncertain, and it has been seen both as a tort and as a species of equitable breach of confidence. This has ramifications for the availability of remedies, particularly in Australia. The equitable remedy of account of profits is more likely to be awarded for equitable causes of action, and only exceptionally for common law causes of action, if at all. By contrast, reasonable fee awards are more likely to be available for certain torts. Thirdly, accounts of profits are generally unwieldy and difficult to calculate, and courts find it difficult to apportion profits to the breach. It is suggested that the remedies available for breach of privacy should be uncoupled from the debates about historical origin. Instead the focus should be upon the normative basis of the cause of action (whether it is conceived of as equitable or tortious, or as a mixture of both), as this will determine what remedies should be available. It will be suggested that accounts of profit should be available for breach of privacy, but only exceptionally, where compensatory damages are inadequate, an injunction is unavailable, the defendant’s breach was advertent and the defendant made a profit. Moreover the difficulties of calculation mentioned above should be dealt with by reversing the burden of proof, and requiring the defendant to show that any net profit was not attributable to the breach. By contrast, it will be argued that reasonable fee awards should not be made, and nor should Lord Cairns’ Act be used (even in a beneficent interpretation) to enable gain-based awards.