There is a disturbing trend to immortalise almost every facet of daily life by taking photographs and uploading them unto social media sites. Such activity should also be cautiously reviewed, since the material that is posted may cause a serious compromise to the subject’s personal security as profilers and deviants can predict movements and patterns of behaviours.
These were the words of the Honourable Mr. Justice Frank Seepersad in the recent Trinidad and Tobago matter of Therese Ho vs Lendl Simmons.
During a sexual relationship between the parties, several photographs were taken by them including nude pictures and photographs of the couple engaged in a sexual act. After their relationship ended some of the photos were allegedly shown to other people. The Claimant filed an action, seeking an order that the Defendant deliver up and/or destroy/discard all the photographs and other materials he possessed of the Claimant; damages for breach of confidence; aggravated damages; and an order that the nude photographs of the Claimant be destroyed by the Registrar.
The Court noted that the common law concept of breach of confidence has never been applied in Trinidad and Tobago to deal with a circumstance where intimate photographs taken in private have been distributed without the consent of the other party.
Reference was made by the Honourable Judge to the Australian Case of Giller v Procopets [2004] VSC 113. In that matter the Defendant who had previously been in a defacto relationship with the Claimant, surreptitiously took video recordings of their sexual activities together and showed these videotapes to relatives and close friends of the Claimant. The Claimant sought damages for, inter alia, breach of confidence and or invasion of privacy. With regard to the claim for invasion of privacy, Gillard J at first instance held that the law in Australia had not developed to a point where a right of privacy existed. With regards to the claim of breach of confidence, his honour found that there was a confidential relationship between the parties, which had been breached by the Defendant’s behaviour in showing the video tapes to third parties. However he held that the claimant could not recover damages for mental distress. On appeal, the Court of Appeal also refused to recognise the tort of privacy, but awarded damages for mental distress caused by the breach of confidence.
The Court took note of the traditional requirements to establish a claim for breach of confidence, as set-out in the cases of Saltman Engineering Co. Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 and Coco v AN Clarke (Engineers) Ltd [1969] RPC41:
- The information must have had the necessary quality of confidence, that is, it must not be something which is public property and public knowledge.
- There must have been an obligation of confidence in the circumstances under which the information was imparted.
- There must have been an unauthorised use of that information by the party communicating it to the detriment of the confider.
Despite stating that “while it may appear that an individual’s sexual exploits should be afforded some protection on account of privacy, the law in this jurisdiction has however not developed so as to recognize any such right“, the Court awarded the Claimant the sum of $150,000.00 inclusive of an award for aggravated damages.
In his reasoning, the Honourable Judge stated as follows:
In this jurisdiction therefore no action can be founded based on the failure to respect the privacy of a person. Given the rapid pace with which the face and fabric of the society has changed and cognizant of the infinite reach of social media, it cannot be denied that the privacy of the person is under attack and there is dire need for the enactment of statute to afford protection for citizen’s personal privacy.
It must also be recognized that while the Courts in the United Kingdom are now obligated to apply the law in relation to breach of confidence in a manner that is consistent with that Nation’s obligations under the Human Rights Act 1988 and its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms, no such obligation exists in this jurisdiction.
The instant case reinforces this Court’s belief that it cannot confine itself to a myopic view of the law and in the absence of legislative protection, the common law concept of Breach of Confidence has to be moulded so as to address modern societal demands. The law has to be dynamic and has to develop in such a way to ensure that it remains relevant and it must be recognised that there is an obligation of conscience which requires that videos, photographs and/or recordings that capture private intimate relations, should be clothed with a quality of confidentiality.
There can be no circumstance that is more private and confidential than where parties are engaged in consensual sexual activity in private. In such a scenario it is unlikely to expect that there would be an express agreement by the parties that their liaisons would be confidential but in such a circumstance an obligation of confidentiality can and must be implied. Consequently, all photographs and recordings which capture sexual practices conducted in private should only be disseminated where the express consent of all the parties involved has been obtained. This Court is of the view that the position adopted in Giller v. Procopets (supra) should be followed in this jurisdiction and this Court finds that the photos in this case are covered with a cloak of confidentiality and that a confidential relationship existed between the parties. The distribution of sexually explicit images including the uploading of such material unto the internet, without the consent of the depicted subject cannot be condoned in civilised society. The possession and dissemination of such sexually explicit material can be used as a tool of blackmail, intimidation and/or revenge and this can result in the infliction of hurt, pain and damage to the depicted subject. On the facts before the Court there was a breach of confidentiality when the photos were distributed, but the issue to be determined is ‘who was first responsible for the breach of confidentiality by their unauthorised distribution of the photos?’
The Court went on to say:
Technological advances have dramatically increased the ease and speed with which such communication and/or sexually graphic images can be disseminated to the world and the process of capturing and disseminating an image to a broad audience can now take place over a matter of seconds by a few finger swipes.
The prudence of this contemporary practice of sharing intimate material which often involves sexual images, by electronic means should be weighed against the damage, distress and embarrassment which the broader dissemination of such material can cause. This reality must therefore inform the way in which equity responds to a breach of the obligation of confidence and has to be considered when determining the relief that should be awarded in response to a breach of that obligation.
The behaviour of the Defendant cannot be condoned and demonstrated a flagrant disregard for the feelings, emotion and dignity of the Claimant with whom he shared sexual relations. The Court was alarmed by the manner in which the Defendant viewed the Claimant as an object and his statement as contained in the messages that “she was just a ‘f–k’ ” is unacceptable. The treatment of women as mere objects of pleasure is offensive, derogatory, antiquated, has no place in a civilised society and is indicative of the general lack of respect.
In this society women are often treated as second class citizens and as being inferior to their male counterparts but the reality is that they are excelling in all facets of national life and they are achieving greater academic success than many of their male counterparts. It is rather unfortunate that a young and talented cricketer like the Defendant behaved in such a manner. Upon the shoulders of those who hold positions of power, prestige and publicity there rests an onerous responsibility to adhere to the highest standards of moral and civilised conduct especially since the nation’s children look towards them to set the standard of acceptable conduct. As a society we have to undertake a critical review, reprioritise and refocus. The objectification of women continues to be viewed as being culturally acceptable as is evident in our soca and chutney music. We must ask ourselves the question, “how are we to build a developed nation when we encourage and celebrate disrespect?” Respect for individuals regardless of gender, ethnicity, sexual orientation, for the law and for authority, must define the way we live and interact with each other.
On the evidence, the Court is convinced that the Defendant wanted to inflict mental and emotional harm to the Claimant. Individuals must take responsibility for their actions and they are charged with the primary responsibility of safe guarding themselves.
In addition to the award for damages, a perpetual injunction was issued issued so as to restrain and/or prohibit the Defendant his servants and/or agents from disseminating, uploading, posting and/or publishing nude and/or sexually explicit photographs of the Claimant and/or photographs that depict her performing the act of fellatio whether by way of the internet, cellular phone or any other form of social media or by any other means whatsoever.
It was further ordered that all the photographs exhibited in this matter should be place in a sealed envelope until the time limited for the filing of an appeal, upon expiration of same, if no appeal has been filed, the photographs are to be destroyed by the Registrar. If an appeal is filed the photographs shall remain sealed until any further order is issued by the appellate court.
The Defendant was also ordered to pay the Claimant costs calculated on a prescribed cost basis.
In the United Kingdom, persons who share explicit images without consent can now be jailed for up to two years.
The featured image used in this post is by Pro Juventute, used under an Attribution-NonCommercial-ShareAlike 2.0 Generic Creative Commons license. Visit Pro Juventute’s flickr photostream.
