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Equity Law


Originally from Melbourne, Ellie has spent the last ten years in Paris mastering his craft as a candid photographer. Involving unmediated chance encounters with people in public, it was through this photographic style that he indulged the joie de vivre of the French.


In October 2022, Ellie decided to return to Melbourne. He immediately began preparing a body of photographic work to be showcased at a public exhibition for new and established artists. Entitled ‘People in the Shadows’, his work would capture the dramatic interplay of light and shadow. Ellie set out to further explore his theme in Melbourne in the lead up to the July 2023 exhibition. With overcast summer skies, he went into the CBD one Sunday in January. By noon, he had arrived at a quiet rooftop bar on Collins Street situated directly opposite residential apartments.


Shortly after arriving, Ellie sensed a commotion on a twentieth-storey balcony on the other side of Collins Street. It had already caught the attention of two other patrons. Covered in dappled light, the balcony was occupied by a woman wearing a risqué nightgown and smudged red lipstick. With camera in hand, he captured a photo of her holding a lit cigarette in one hand, and a glass filled with an amber coloured substance in the other.


Anticipating another candid moment, Ellie skilfully adjusted his camera’s long-focus lens. To improve his angle, he then entered a restricted area of the bar. In the meantime, a male’s expletive-laden rage had caused the woman to move hurriedly from the balcony and into her apartment living room. Ellie then captured another photo of her looking fearfully into his lens whilst standing behind a tall transparent glass window. Although half her face is veiled by a sheer curtain, she is clearly weeping.


After taking these two photos, a bartender, Maia, informed Ellie that the woman is controversial Australian actor, Tonya. She also told him that Tonya is often seen and heard arguing with her partner, Fidel, after nights of heavy drinking. Maia also administers a publicly accessible Instagram page that depicts intoxicated celebrities. To her deep embarrassment, Tonya has been featured on it once before. Ellie sent his second photo to Maia’s iPhone in the hope she would post it to her page.

To her distress, Tonya has since discovered that the second photo was posted to Instagram, and that the first photo will be publicly exhibited in July.

Advise on any duty(ies) arising in equity.




Equity Law


The brief facts of the case are that Ellie is a candid photographer who has returned to Melbourne after spending a decade in Paris. He is preparing for a public exhibition entitled ‘People in the Shadows’ and has been exploring Melbourne for inspiration. At once, at a rooftop bar, he captured two candid photos of Tonya, a controversial Australian actor, one on her apartment balcony and another behind a tall transparent glass window, looking fearful and weeping. Ellie shares the second photo with Maia, the bartender who administers an Instagram page that showcases intoxicated celebrities. Tonya discovers that the second photo was posted on Maia’s page, and the first photo will be publicly exhibited in July.


In this case, the issue is whether Ellie’s capturing and publication of intimate moments of Tonya’s photos without her consent constitute a violation of her privacy and right to publicity. What are the possible ethical and legal implications of the same?



As per the Australian equity law, a person has a right to privacy and publicity. It recognises that a person has a right to control the use of their image and likeliness, including the right to object to the publication of their image or likeness without their consent. The tort of invasion of privacy can be actionable in certain circumstances, including where there has been an unreasonable intrusion upon a person’s seclusion or private affairs or where there has been a public disclosure of private facts about an individual.


In this case, the principle of equitable wrongs is the breach of confidence. A violation of confidence occurs when a piece of confidential information is disclosed to a third party without the consent of the person who shared it and where such disclosure would be harmful or detrimental to the person.[1]

[1] Bryan, M., and Vann, V., Breach of Confidence, Equity and Trusts in Australia, (Cambridge University Press, 2012 pp.189–206).


Confidential information can be transmitted mainly through three modes, i.e., by deliberate confiding, surreptitious taking and chancing upon. In this case, Ellie has surreptitiously taken photographs of Tonya. In the case of Hellewell vs Chief Constable of Derbyshire[2], the court explained the issue of surreptitious photography by explaining that it involves taking a photo of another engaged in some private act without their consent and from a distance and with no authority to do so. This description of surreptitious photography suggests that the act is intrusive and violative of the individual’s privacy. In the present case, Ellie’s taking of the photographs of Tonya could be considered a form of surreptitious photography as he took the photos of Tonya without her knowledge or consent from a distance.


In the case of Coco vs AN Clark (Engineers) Ltd[3], the court sets out the ‘Coco Formula’ for establishing liability in cases of breach of confidence. The formula requires the claimant to prove three elements: that the information has the necessary quality of confidence about it, that it was imparted in circumstances that import an obligation of confidence, and that there was an unauthorised use of that information.



In this case, Ellie took candid photographs of Tonya without her consent while on her balcony and later in her apartment. Ellie unreasonably intruded upon her seclusion and private affairs when he entered a restricted bar area to get a better angle of the photographs. Firstly, the public display of the photographs without Tonya’s consent could constitute a public disclosure of private facts about her. Ellie has a duty to respect the privacy of the individuals he photographs, especially in a vulnerable or private situations. This duty arises in equity which recognises actions based on his artistic pursuits. However, he has the duty to consider the potential harm the principle of fairness, justice and morality. Ellie, in this case, may justify his and invasion of privacy caused by his actions.


Secondly, by sharing Tonya’s photos with Maia and allowing them to be posted on a publicly accessible Instagram page, he has breached Tonya’s confidentiality. This duty arises from a relationship of trust or confidence between the parties. It requires that confidential information must not be disclosed without the owner’s consent or lawful authority. Ellie also has a duty to consider the potential harm caused to Tonya’s reputation and emotional well-being.

[2] Hellewell v Chief Constable of Derbyshire, (1995) 1 WLR 804.

[3] Coco v AN Clark (Engineers) Ltd, (1968) FSR 415.


Thirdly, Ellie has breached their confidence by sharing Tonya’s private and sensitive information, which he obtained through unauthorised photography of her. Ellie’s conduct in capturing and sharing photos of Tonya weeping in her apartment and holding a glass filled with an amber-coloured substance can be seen as a breach of confidence. Also, disclosing this information to Maia, who runs a publicly accessible Instagram page that depicts intoxicated celebrities, could be seen as a breach of confidence as it has caused harm and embarrassment to Tonya’s reputation.



In summary, Ellie has the duty which arises in equity to respect the privacy and confidentiality of the individuals he photographs. To fulfil his duty, he should seek their consent, failing which will result in being liable for legal or equitable remedies. As a result, Tonya may be entitled to equitable remedies such as an injunction to prevent the exhibition of the first photo and damages for any harm used by the publication of the second photo on Instagram. Tonya has legal options available to seek equitable remedies to protect her privacy and prevent further harm from being caused by the publication of the photos. Tonya can also claim compensation since she has suffered damages such as emotional distress, reputational harm, and loss of privacy. However, the amount of compensation awarded would be dependent on the nature and the extent of the harm suffered by her.

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