Revenge Porn

By Azaria Cheddie                            On 17.03.2019


What is it?

“Revenge Pornography” or more colloquially “Revenge Porn” refers to the electronic distribution of sexually graphic images or videos of individuals without their consent.

On October 26th, 2015, the Honourable Justice Frank Seepersad delivered a landmark ruling in the case Therese Ho v Lendl Simmons at the Trinidad & Tobago High Court. This case marked the first time the common law concept of breach of confidence was applied in this jurisdiction to deal with a circumstance where intimate photographs taken in private have been distributed without the consent of the other party. The Honourable Judge stated that the instant case reinforces this Court’s belief:

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… it must be recognized 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…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 civilized society.

The Honourable judge went on to say that:

While it may be difficult for some to comprehend, it appears that it is not uncommon for couples in a sexual relationship to share intimate images with each other using their mobile phones during their relationship. This practice has introduced a relatively new verb- ‘sexting’ – to the English language and the dissemination of graphic sexual material after relations end has been coined as ‘Revenge Porn.”

Who does it affect and why should you care?

It should be noted that most victims of revenge porn are women. This single act has far-reaching consequences. It 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. Furthermore, it can harm a person’s reputation and career and lead to public ridicule, embarrassment, depression and even suicide. On the topic of women, Justice Seepersad observed:

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… The objectification of women continues to be viewed as being culturally acceptable… how are we to build a developed nation when we encourage and celebrate disrespect? Respect for individuals regardless of gender, ethnicity, sexual orientation… must define the way we live and interact with each other.

Legal developments around the world

With technology being a huge part of our daily lives and instances of revenge porn occurring too often, most jurisdictions have been responding with anti-pornography laws to criminalize the offensive activity.

Internationally

In “Drafting an Effective “Revenge Porn” Law : A Guide for Legislators (2015),” Mary Franks shared:

In 2009, the Philippines became the first country to criminalize non-consensual pornography, with a penalty of up to 7 years’ imprisonment. The Australian state of Victoria outlawed non-consensual pornography in 2013. In 2014, Israel became the first country to classify non-consensual pornography as sexual assault, punishable by up to 5 years imprisonment; Canada and Japan criminalized the conduct the same year. England and Wales criminalized the conduct in February 2015. New Zealand outlawed the practice in July 2015. Northern Ireland and Scotland followed suit in February and March 2016, respectively. In 2015, Germany’s highest court ruled that an ex-partner must destroy intimate images of his former partner upon request.

Similarly, in Europe, the countries Malta, Germany and France; forty-three (43) states in the United States of America and; New South Wales, South Australia and Western Australia in Australia have also codified the offence of revenge porn.

Regionally

In the region, Jamaica reacted with the Cybercrimes Act of 2015. In Antigua & Barbuda such crimes are covered by the Electronic Crimes Act of 2013. In 2005, Barbados sought to expand their list of criminal offences on account of the advances in technology with the passing of the Computer Misuse Act.

The need for legislative change in Trinidad:

Justice Seepersad stated:

Technological advances have dramatically increased the ease and speed with which… 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.

However, legislation to keep abreast of these technological advances has yet to be enacted.

It is unfortunate that as a society we have not been proactive and that we are burdened with so many archaic laws that predate our independence… 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.

The Cybercrime Bill:

The Cybercrime Bill has been in deliberation in Trinidad and Tobago Parliament for some time and has yet to be passed:

For further information: http://www.ttparliament.org/legislations/b2017h15g.pdf

Trinidad Case Law

Therese Ho v Lendl Simmons:

While Justice Seepersad admitted that local laws had not developed to address the issue of revenge porn, he noted that the court had a duty to develop and interpret existing laws to protect citizens from the pain and suffering which resulted from the unregulated practice popularized with the increased use of social media.

Breach of Confidence:

The court exercises an equitable jurisdiction to restrain a breach of confidence independent of any right at law. The Court will grant equitable relief on this basis in three instances where no remedy would normally be available at law. They are:

  1. where the parties to a confidential disclosure are not in a contractual relationship;
  2. where a third party receives confidential information from a confidant in breach of the confidant’s obligation of confidence, the third party can be restrained from misusing that information; and
  3. persons who acquired confidential information in the absence of a confidential relationship may be restrained by equity.

To obtain this relief a claimant will have to show that:

  1. the information must have the necessary quality of confidence, that is, it must not be something which is public property or knowledge;
  2. there must be an obligation of confidence in the circumstances under which the information was imparted; and
  3. there must have been an unauthorized use of that information by the party communicating it to the detriment of the confider.

The duty of confidence arises out of the nature of the relationship between the confidant and the person to whom the information relates. Where however there is no obvious relationship between the parties, an independent duty of confidence will arise in equity. The Courts have recognized that information disseminated between individuals who fall within the following categories of personal relations, may attract the cover of confidentiality:

  1. Husband and wife: Duchess of Argyll v. Duke of Argyll (1967) 1 Ch 302
  2. Unmarried sexual partners: Stephens v. Avery (1988) Ch 449 at paragraph 454

Reliefs:

According to Justice Seepersad:

The Court in its inherent jurisdiction can grant relief and award equitable compensation in addition to injunctive relief. In this case there is no evidence of actual financial loss or of physical injury, however in her evidence the Claimant said that she suffered emotional and mental distress and that she was subjected to public ridicule. Her evidence, on these matters was not challenged… Under the common law, aggravated damages can also be awarded to compensate a litigant when the harm occasioned by the wrongful act has been aggravated by the manner in which the act was done.

What can I do?

Seek legal advice as to whether you can and should bring an action against your ex-partner for breach of confidence.

Educate people who may not be informed of their rights.

Links to more information:

Text:

Gurry on Breach of Confidence: ‘The Protection of Confidential Information’ 2nd Edition

Cases:

Saltman Engineering Co. Ltd .v. Campbell Engineering Co Ltd (1948) 65 RPC 203

Coco .v. AN Clarke (Engineers) Ltd [1969] RPC41, are as follows:

Campbell .v. MGN [2004] 2AC457

Giller .v. Procopets [2004] VSC

 

This post does not constitute or provide legal advice neither does it establish an attorney-client relationship. If you need legal advice, please contact an attorney directly.

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