(Words: 4448 excluding bibliography and this line)
Introduction
The privacy issue is a growing concern of the public in modern society and has attracted academic debates for centuries. This essay opens by reviewing the elements of the equitable doctrine of confidentiality and the origin of legal concepts of both confidentiality and privacy.
In the first place, the essay illustrates the scope of the equitable doctrine of confidentiality by conducting some case studies. Henceforth, the essay focuses on discussing why we may not apply the equitable doctrine of confidentiality to privacy issues. Pursuing this further, the essay examines the legal concepts of both torts and property, with the intention to explore new perspectives on protecting privacy.
The essay concludes that the equitable doctrine of confidentiality, although capable of protecting privacy, may not be sufficient to protect our privacy in a more profound way.
Equitable Doctrine of Confidentiality
To be qualified for equitable protection as to confidentiality, three elements must be met in the circumstances: “First, the information itself…must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorized use of that information to the detriment of the party communicating it’’. [1]
Confidentiality
The concept of confidentiality has its root in the Anglo-American common law dating back to 1890. [2] The simple fact is confidentiality is deeply embedded in the relationship. Confidentiality specifically cares about the relationships which naturally require trust between each other and never disclosing private information to third parties. [3]
Therefore, what confidentiality protects is the information ‘’we share with others based upon our expectations of trust and reliance in relationships’’. [4] The ‘’expectations’’ and the ‘’reliance’’ are the key elements in identifying the relationship, without these two premises, the third element of the equitable doctrine of confidential information will be null as there will be no ‘’detriment’’ caused by the breach.
Privacy
Ten years ago when I was a student of media arts at a university in South Australia, our tutor once shared what Mark Zuckerberg said about privacy – ‘’Modern people do not have privacy’’. Why Mark Zuckerberg said so only because he as a businessman wanted to pioneer into an uncharted land for profit, but how to legally protect privacy remains to be an intriguing modern question.
Privacy seems to be an embarrassing concept, especially in Australia, as it travels on the Australian legal landscape but has not found its own permanent home. Privacy enjoys several legal protections including the equitable doctrine of confidentiality, statute, and the discussion of tort protection has also excited legal professionals. [5] However, Australian courts have not fully embraced the idea to acknowledge ‘’a tort of invasion of privacy’’ or any idea precisely to protect privacy, [6] even though the invasion of our privacy has been rampant.
To extend or not to extend, is a question of scope
To extend or not to extend the protection of the equitable doctrine of confidentiality to privacy, is a question of scope, and a question of fact.
Gleeson CJ believed that the equitable doctrine containing the above elements for breach of confidence could be ‘’the most suitable legal action for protecting privacy interests in Australia’’. [7] The notable expansion of equitable confidentiality at least includes two key concepts. In Lenah, Gleeson CJ has widened the scope of the circumstances previously confined within the relationship of trust and confidence; He also stretched the definition of confidential information to encompass the idea of privacy. [8]
Among so many types of “private situations’’ which may all deserve to be protected, there are some situations where we, as human beings, are particularly vulnerable. For example, patients have to be open and honest with their physicians, [9] another situation is sexual privacy.
We may investigate some cases to see how the equitable doctrine of confidentiality unfolds as to the privacy issues if extending such equitable protection.
Case Study
I A Public Figure’s Sexual Activity in a Brothel?
Defining the nature of the information – ‘’the necessary quality of the information’’ – is always an ambiguous standard. Judges in Doe held that sexually related explicit information met the requirement of having the necessary quality of confidence for equitable protection. [10]
There are some cases that support such a view that equitable confidentiality should protect sexual privacy, such as Giller v Procopets, and Wilson v Feguson. [11] But there is also an extreme situation about ‘’transitory’’ sexual activity in a brothel, for example, Theakston v MGN Ltd.
We usually would not care if our neighbor visits the brothel, nor would the media, unless our neighbor is a household name. As the fundamental human rights, in any usual situation, ordinary people’s privacy is protected by Article 12 of the Universal Declaration of Human Rights: ‘’No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’’ [12] Sexual privacy is supposed to be one of them.
But a public figure has his or her ‘’double identity’’, the scope of confidentiality may not cover all of his or her privacy. In a case like Theakston v MGN Ltd, the claimant might not be entitled to the protection of confidentiality regarding the fact, which was not worthy of protection as the court found the public interest does exist (for the reason as a role model, etc). [13] However, the court found the photograph represented a ‘’intrusive’’ element into the claimant’s privacy therefore the competing interest such as the right to the freedom of expression could not outweigh the predictable damage to the claimant’s privacy. [14]
That also raises another question – if some parts of the sexual relationship have to be revealed or disclosed due to the ‘’public interest’’, would the law of confidentiality merely allow ‘’the disclosure of the existence of sexual relationships’’ or ‘’the details of that relationship’’ in question? [15]
Such a question shows how the court can draw a fine line around the scope of confidentiality protecting privacy. The claimant’s social status as a successful and public figure, close to a moral model initially portrayed by the employer BBC, is not protected by the equity’s confidentiality, [16] because by choosing this career, he has somehow compromised his certain privacy that ‘’his actions will be more closely scrutinized by the media’’. [17] However, although the more one seeks publicity the more intrusion into the privacy one may invite, [18] it still does not mean the intrusion can be unlimited simply because he or she is a public figure.
Public interest plays a key and subtle role in such cases. In a world where voyeurism is enhanced by the media, it is vital to distinguish public interest from public curiosity when extending equitable protection to privacy.
Equitable Confidentiality and Privacy
As shown above, the equitable law of confidentiality may have the ‘’capability’’ to extend to protect privacy, under the court’s discretion, as both confidence and privacy are ‘’capable of overlapping’’. [19]
However, their Honours in Hosking clearly pointed out that privacy and confidence are different legal species – ‘’Breach of confidence, being an equitable concept, is conscience-based. Invasion of privacy is a common law wrong which is founded on the harm done to the plaintiff by conduct which can reasonably be regarded as offensive to human values.” [20]
Legal history actually reflects the difference in two major paths: “…American privacy law has centered around the individual’s inviolate personality, English privacy law has focused on social relationship’’. [21]
Ordinarily, confidentiality is more based on the contractual relationship as the concept is derived from ‘’the terms of a contract between confider and confidant’’. [22] Confidence must be established between at least two parties, it is embedded in the relationship. But the confidential information with ‘’necessary quality of confidence’’ only possessed the commercial characteristic associated with trade secrets, [23] the evolved version of equitable confidentiality enveloped the privacy, but it is still rooted in the ‘’relationship’’ (although trust and confidence might not be emphasized), because a contract is basically a relationship-based concept.
It is somehow reasonable to base the protection to privacy on the relationship-based contractual concept, because, even most private information must ‘’flow’’ from one party to another party. The equitable doctrine of confidentiality typically relates to some aspects of ‘’estoppel’’ of contract law, for example, reliance, and unconscionability, just like what Mitchell J said in Wilson v Ferguson, that ‘by that principle, equity imposes an obligation of conscience arising from the circumstance…’. [24]
However, privacy is not just a relationship or certain information. The breach of confidentiality is just misconduct during business transactions.
Why or Why Not Using Equitable Confidentiality for Privacy
The equitable doctrine of confidentiality for privacy holds a relatively higher standard. Certain elements in this doctrine represent such difficulties.
Morality-based Approach –
Equitable confidentiality for privacy is generally a morality-based approach. Through the perspective of morality, Fletcher has distinguished privacy from confidentiality by explaining the ideal of loyalty:
“We value privacy, but it is hardly a moral value. Whether privacy becomes moral depends a great deal on what one does in the space left unregulated and unsupervised. Privacy, being left alone, is itself neither good nor bad. Loyalty, by contrast, communicates the moral value of remaining steadfast to friends, lovers, families, organizations, political movements, and nations. We search for loyalty in all those with whom we seek to build personal, business, or political relationships.’’. [25]
Taking such a morality-based approach to determine whether privacy should be protected by confidentiality reveals the soul of equity. Judge in the case Theakston v MGN Ltd has expressed that ‘’Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away…’’. [26]
Lord Woolf CJ shared a similar view in A v B plc that there is a difference ‘’between the confidentiality which attaches to what is intended to be a permanent relationship and that which attaches to the category of relationships which A was involved with here’’. [27]
The reason behind such a view might be because there is an assumption that the ‘transitory engagement in a brothel’ cannot be deemed as a relationship. Knowledge about the nature of such “transitory engagement” might be one of the key elements as both parties would not expect and rely on such engagement. [28]
In the morality-based approach, the Judge took a position that only the true relationship deserves the protection of confidentiality, and the criteria to determine the ‘’true relationship’’ may include the length of time (permanent, long-term, or even one-night stand). The rationale is apprehensible. The law of confidentiality traditionally protects those relationships invested with expectations, trust, and reliance. [29]
Harm-based Approach –
The equitable doctrine requires the unauthorized use of information must lead to a detrimental consequence, at least in a foreseeable way. This is somehow based on the ‘’Harm Principle’’ laid out by the 19th-century political philosopher John Stuart Mill in his book On Liberty, that ‘’…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others“. [30]
We may need to ask ‘’whether we need a harm principle-based doctrine to set such a higher bar to protect our privacy?”
In fact, Mill’s harm principle also casts light on the definition of privacy: “…the only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign…’’ [31]
In some cases, using a harm-based approach to deal with an individual’s sovereignty is not always effective. With the progress of technology, many novel issues about privacy violations have emerged, i.e. creepshots. Creepshots are those images taken in any public place without exposing sensitive and intimate information. [32] Creepshot forums rely on the harm principle as their motto ‘’no harm, no foul’’ strongly defends that nothing uploaded onto their site is either sexually explicit or personally identifiable, however, Ryan Chan pointed out that the absence of consent and respect can still make it amount to violation to privacy. [33]
Notably, what Creepshot forums believe is ‘’no confidentiality, no harm, no foul’’. However, if we use the land property as an example, we might see this issue more clearly. If a stranger constitutes trespass to the land, he or she does not have to trespass to your bathroom or bedroom where you usually are naked, even your front yard or backyard exposing under the sunshine is protected by the tort law. Furthermore, a trespasser does not have to cause destructive damage to your house/land to amount to trespass, simply ‘’crossing the line’’ is sufficient to be offensive, because the key point here is ‘’without consent’’.
Although this may be true, enhancing the interference over privacy is a difficult question. The counterargument is, unless there is a breach of criminal law, either the state or the media should not after an individual’s sexual life. [34] This is probably one of the reasons why the State rarely explicitly designs laws to ascertain the sexual-related issues between individuals, unless that’s rape, etc.
Service-based Approach –
Actually, even an evolved version of the equitable doctrine of confidentiality is still a makeshift choice for privacy.
Ryan Chan pointed out the fundamental reason is that ‘’the breach of confidence action rests on a foundation not of protecting privacy, but rather protecting against misuse of information’’. [35] He went on to explain that the breach of action was more suitable to deal with the published information, yet the power of the BOC did not cover the conduct itself. [36]
Besides, the equitable doctrine of confidentiality focused more on the quality of ‘’content’’ (or information) and relationship (even though trust is not required, the ‘expectation’ still creates ‘obligation’). As we can see in a case like Theakston, judges would need to spend some time to distinguish the ‘’moral quality’’ of the relationship…For Warren and Brandeis, their pioneering effort was to discover another perspective, as they argued ‘’the goal of privacy protections not as enforcing the norms and morality of relationships but as protecting an ‘inviolate personality’ and the feelings of the individual from injury”. [37]
Richards and Solove pointed out that Warren and Brandeis failed to see that ‘’a lot of privacy invasion still involved relationships between people’’ and therefore didn’t ‘’appreciate the full power and potential of confidentiality’’. [38]
However, the information what confidentiality protects is the by-product of a relationship, it is most likely service-based information. This is also in line with the origin of confidentiality which falls within the business or commercial secret. Richards and Solove introduced the example of the Hippocratic Oath that ’’…whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.’’ [39] Whether or not the information is directly connected with professional service, the information is still derived from such a “professional relationship”. As Richards and Solove clarified that confidentiality is essentially about ‘’protecting information from disclosure in the context of relationships”. [40]
But privacy is a much more complicated concept than confidentiality, it is more about ‘’individual sovereignty’’.
Rare remedy for monetary compensation –
Mitchell J in Wilson v Ferguson also concerned whether ‘’equitable compensation can be awarded to compensate a plaintiff for non-economic loss…’’ [41] He outlined two conceptual barriers which would be the bar to the plaintiff’s claim. Compared with the first barrier that the common law damages for emotional distress are only accessible ‘’in very limited circumstances’’, Mitchell J analysed that the second barrier that Australian equitable compensation had only been awarded for economic loss represented more difficulties to the plaintiff. [42]
Besides, an injunction might not be an effective way to deter the invasion of privacy. An injunction to restrain the spread of private information may work well in an age when printing technology is dominant. But in today’s technology-driven society, uploading one image or one video means uploading one thousand images or videos due to the internet can spread information in an exponentially growing scope within seconds, this has also been a concern in Wilson v Ferguson. [43] Therefore, Mitchell J pointed out that the relief should ‘’take account of the immediacy’’ when facing contemporary issues. [44]
Nevertheless, Mitchell J acknowledged the progress pushed by Giller that the equitable relief has been able to extend from an injunction to monetary compensation to enforce the equitable obligation, and he attributed the rationale behind such judgment as the ‘cardinal principle of equity’’ to tailor the remedy based on the uniqueness of the case. [45] Such flexibility does make equitable protection over privacy look more adaptable, despite how to treat our critical privacy will be at the mercy of different judges.
New Perspective – A Tort of Privacy or A Property?
A Tort of Privacy? –
Given these points, it is worth exploring some new perspectives. Mill’s idea that the individual is sovereign naturally invites us to examine the possibility by looking at torts law. Des Bulter recommended that “the trespass-based privacy tort would be aimed at preventing any intrusion upon an individual’s personal privacy…” [46]
There are similarities up to a point between trespass and invasion of privacy. Trespass torts as ‘’dignitary torts’’ relates to ‘’an invasion of another person’s defined rights to bodily and mental integrity…’’. [47] Identically, European tradition embedded its seed of dignity in the ‘’protection of feelings’’. [48] The rationale behind torts law as a common law to “respect the privacy, autonomy and dignity of each human being”, [49] is in line with the classic concepts of privacy.
Also, trespass to the land has never required the defendant’s interference must cause ‘’damage’’ to the land or the possession of the land, as it is fundamentally a rights protection.
Furthermore, in the torts law against the trespass to the land, an important legal concept, the concept of ownership, speaks for our rights in a profound way, that is ‘’because one of the purposes for bringing an action in trespass to land is to assert ownership (or to have an interest in land recognized), and because the ownership and possession of the land was fundamentally important in English social history as one of the early sources of wealth, position and power, the common law judges have been ferocious in protecting these rights.” [50]
As has been noted, the equitable doctrine of confidentiality has not been able to navigate the protection into the depth that torts alike law may provide.
The concept of trespass or torts of privacy does provide a fresh perspective towards protecting privacy as to rights protection. However, among so many different rights, which right is a better fit for privacy protection?
As we discussed above, the breach of confidence usually arises from the professional-client relationship, even putting aside the relationship between lovers, the case of strangers taking snapshots, for example, creepshots in a modern society setting, will also not fit in such protection. Warren and Brandeis argued that the law of relationship-based confidentiality didn’t sufficiently cover the cases arising out of non-professional-client relationships because ‘’a stranger (photographer) did not have a relationship with the subject of the photo’’. [51]
Warren and Brandeis went on to argue that ‘’since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection”, and they pointed out because no contract was built up between them, no trust arising out of such a situation. [52]
A Property? –
Most importantly, the conclusion of Warren and Brandeis is convincible based on such analysis. They believed the right to privacy should be treated as ‘’a right against the world’’, instead of being regarded as a right arising ‘’from contract or from special trust’’. [53] Although the purpose of Warren and Brandeis was to find a remedy for spiritual or mental injury for privacy, here we can see they lead us to face a very bold perspective, a possible new path, that the right to privacy was supposed to be evaluated as ‘’rights in rem’’ (usually the property right), instead of being regarded as ‘’rights in personam’’ which is found in the contractual relationship between parties.
It is in this sense, we can give privacy the maximum protection, which covers both contractual relationships (professional or business types) and non-contractual relationships (lovers, or creepshots cases), or we should say, the characteristic of the relationship is actually irrelevant. And from this point of view, we will agree with what Kay Wheat stressed that ‘’the obligation to respect privacy is wider than the obligation of confidence in that the latter only arises when confidential information is imparted in certain circumstances.’’ [54]
Therefore, using the equitable doctrine of confidentiality, which is derived from the contractual relationship, may only provide limited or narrow protection to our privacy, as equitable confidentiality is fundamentally established between parties, either professional (business) or non-professional (private). However, as we can see above, the position of privacy under equitable protection over confidentiality is relative, yet the innate character of privacy reveals that we should place our privacy in an absolute position, only being restricted by very few necessary interferences under rare condition, such as public interest, etc.
Moreover, for ‘’western cultures of privacy’’, James Whitman differentiated “an American tradition of liberty rooted in the protection of the home and a European tradition of dignity rooted in the protection of feelings’’. [55] Therefore, when Warren and Brandeis considered privacy as ‘’a right against the world’’ (rights in rem), they wanted to consolidate the right of privacy into a right with absolute characteristics, although the inspiration came from the case Prince Albert v Strange, [56] Warren and Brandeis genuinely attempted to ‘’turn Prince Albert from an opinion protecting intellectual property rights to a case protecting individual feelings and emotions from the pain of unwanted publicity’’. [57]
In my view, if our body (including mental) is a ‘sovereign’’, any private information centered around our body is supposed to be treated as our property – our very own “national assets’’. In saying that, it does not mean to ‘’objectify our body’’, instead, it only means the information as to our being, including name, address, telephone number to sexual activity, etc., should be regarded as our own ‘’assets’’.
The inadequacy of the equitable doctrine of confidentiality for privacy protection exists in that the contractual relationship-based equitable law does not create or acknowledge any ‘’property rights’’ for our privacy, nor any ‘’ownership”.
If you have land or a house, you have property, and the land law or property law will protect you; If you write a book or create art, your creation will be protected by intellectual property law. But ideally, what law will protect your private information, from general information to the most intimate sexual relationship, in the most appropriate way?
If we look at the Australian case Wilson v Ferguson, some factual moments may suggest why introducing new law is necessary:
First, on one occasion when the plaintiff left her phone in the room for a while, and later the defendant told her that he had taken the images and videos out of her phone and emailed them to himself, the plaintiff was already irritated with such conduct and confronted the defendant why he did so without consent.[58]
Second, the plaintiff also requested that the defendant should keep this information to himself, and the defendant promised to do so at that time. [59]
In fact, the equitable doctrine of confidentiality only tackles the issue similar to ‘’estoppel’’ arising from the second scenario. However, before the defendant breached confidentiality, he already invaded the plaintiff’s privacy. The invasion to privacy was not significantly addressed by the contractual relationship-based equitable doctrine of confidentiality.
It might be better conducted in a setting where privacy can be regarded as ‘’property’’.
Imagine such a scenario, if a couple purchased a house together, this house is their shared property. If one day the husband or the wife wanted to do some tricky things to transfer the whole property under his or her individual name (without consent), the law will classify this conduct as fraud.
If later their relationship turned sour and the husband wanted to ‘’publish some intimate materials online’’ (taken during their honeymoon, without consent definitely), etc., if our law treats our privacy in a serious way to the extent that the law recognizes our ‘’personal information’’ (not even just intimate information) as sacred property, the law will deem the husband’s conduct as ‘’fraud’’ or some other wrongs, even though such private information is their ‘’shared property” and the husband may also be the ‘’leading man’’ in their ‘’shared property’’ – the sexually explicit footage.
In Hosking, their Honours expressed such a view that ‘’… I consider it legally preferable and better for society’s understanding of what the courts are doing to achieve the appropriate substantive outcome under a self-contained and stand-alone common law cause of action to be known as invasion of privacy”. [60]
A Culture of Individualism? –
Ultimately, whether the equitable doctrine of confidentiality should be used to protect privacy can be asked in another way – how important our privacy is?
The answer may rely on the comparison between Australia and U.S., U.K, that ’’In America, the prevailing belief is that people assume the risk of betrayal when they share secrets with each other. But in England, spouse, ex-spouse, friends, and nearly anyone else can be liable for divulging confidences…. American privacy law has never fully embraced privacy within relationships; it typically views information exposed to others as no longer private….” [61]
America is a country that favors individualism more than any other country in this world, at least traditionally, that is not to say American does not value relationships, it simply means the degree of “reliance’’ on “shared secrets” might not be that high, and the line between ‘’self’’ and ‘’others’’ is clearer. As a result, many important laws have been developed around the concept of ‘’individual’’ – Bill of Rights, etc.
Conclusion
As shown above, the equitable doctrine of confidentiality may be able to protect privacy to some extent, but they are still different legal species. This essay does not attempt to make a definitive conclusion, instead, it aims at discovering some new possibilities as well as posing thought-provoking questions as to our invaluable privacy. In simple terms, it is necessary to maximize the protection of privacy as an absolute right beyond the flexible equitable doctrine of confidentiality.
BIBLIOGRAPHY
A Articles/Books/Reports
Czarnota, Paul A., ‘Athlete Privacy Rights and Endorsement Contracts: An Analysis of U.S., U.K., and Australian Law’ (2012) 11(2) Virginia Sports and Entertainment Law Journal 460
Chan, Ryan, ‘Creepshots – A Persistent Difficulty in the Australian Privacy Landscape’ (2020) 39(2) University of Tasmania Law Review 83
Davis, Julia, and Marco Rizzi, Connecting with Tort Law (Oxford University Press Australia & New Zealand, 2nd ed, 2020)
Gellman, Robert M., ‘Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy’ (1984) 62(2) North Carolina Law Review 255
Pont, G E Dal, Equity and Trusts: Commentary and Materials (Thomson Reuters (Professional) Australia Limited, 7th ed, 2019) 200
Richards, Neil M. Richards, and Daniel J. Solove, ‘Privacy’s Other Path: Recovering the Law of Confidentiality’ (2007) 96(1) Georgetown Law Journal 123
Wheat, Kay, ‘Lawyers, Confidentiality and Public and Private Interests’ (1998) 1(2) Legal Ethics 184
B Cases
Coco v A N Clark (Engineers) Ltd [1969] RPC 41
Giller v Procopets (2008) 24 VR 1
Prince Albert v. Strange (1848) 41
Wilson v Ferguson [2015] WASC 15
C Treaties
Universal Declaration of Human Rights
E Other
Website page, https://plato.stanford.edu/entries/freedom-speech/#JohStuMilHarPri
[1] Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47.
[2] Neil M. Richards and Daniel J. Solove, ‘Privacy’s Other Path: Recovering the Law of Confidentiality’ (2007) 96(1) Georgetown Law Journal 123, 125.
[3] Ibid 125.
[4] Ibid.
[5] Julia Davis and Marco Rizzi, Connecting with Tort Law (Oxford University Press Australia & New Zealand, 2nd ed, 2020) 187.
[6] Paul A. Czarnota, ‘Athlete Privacy Rights and Endorsement Contracts: An Analysis of U.S., U.K., and Australian Law’ (2012) 11(2) Virginia Sports and Entertainment Law Journal 460, 491.
[7] Ryan Chan, ‘Creepshots – A Persistent Difficulty in the Australian Privacy Landscape’ (2020) 39(2) University of Tasmania Law Review 83, 89.
[8] Ibid.
[9] Robert M. Gellman, ‘Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy’ (1984) 62(2) North Carolina Law Review 255, 257.
[10] Chan (n 7) 90.
[11] Giller v Procopets (2008) 24 VR 1; Wilson v Ferguson [2015] WASC 15.
[12] Universal Declaration of Human Rights, Art 12.
[13] G E Dal Pont, Equity and Trusts: Commentary and Materials (Thomson Reuters (Professional) Australia Limited, 7th ed, 2019) 200.
[14] Ibid 203.
[15] Ibid 205.
[16] Ibid 202.
[17] Ibid, p204.
[18] Ibid, p204.
[19] Pont (n 13) 207.
[20] Ibid 208.
[21] Richards and Daniel J. Solove (n 2) 127.
[22] Pont (n 13) 192.
[23] Chan (n 7) 89.
[24] Wilson v Ferguson [2015] WASC 15, 45.
[25] Kay Wheat, ‘Lawyers, Confidentiality and Public and Private Interests’ (1998) 1(2) Legal Ethics 184, 186.
[26] Pont (n 13) 201.
[27] Ibid 204.
[28] Ibid.
[29] Richards and Daniel J. Solove (n 2) 126.
[30] https://plato.stanford.edu/entries/freedom-speech/#JohStuMilHarPri
[31] https://plato.stanford.edu/entries/freedom-speech/#JohStuMilHarPri
[32] Chan (n 7) 85.
[33] Ibid 86.
[35] Chan (n 7) 88.
[36] Ibid 92.
[37] Richards and Daniel J. Solove (n 2) 133.
[38] Ibid.
[39] Ibid.
[40] Ibid 132.
[41] Ferguson (n 24) 71.
[42] Ibid 72.
[43] Ibid 80.
[44] Ibid 81.
[45] Ibid 82.
[46] Davis and Marco Rizzi (n 5) 187.
[47] Ibid 148.
[48] Richards and Daniel J. Solove (n 2) 127.
[49] Davis and Marco Rizzi (n 5) 188.
[50] Ibid 204.
[51] Richards and Daniel J. Solove (n 2) 132.
[52] Ibid.
[53] Ibid.
[54] Wheat (n 25) 186.
[55] Richards and Daniel J. Solove (n 2) 127.
[56] Prince Albert v. Strange (1848) 41.
[57] Richards and Daniel J. Solove (n 2) 131.
[58] Ferguson (n 24) 23.
[59] Ibid.
[60] Pont (n 13) 207.
[61] Richards and Daniel J. Solove (n 2) 126.