Financial Compensation for Revenge and Breach of Confidence (and poor taste)
Published on February 17, 2016 by Martin Slattery
When relationships end, some people seek revenge. Unfortunately, there are individuals who decide to share private sexual material involving their ex, in an act that has been dubbed ‘revenge porn’. While clearly distasteful, such behaviour may also be illegal. Some states have legislation that specifically addresses the criminality of this practice, while other states are considering how to approach the issue. A bill was also introduced into Federal Parliament in October 2015 seeking to amend the Commonwealth Criminal Code to criminalise the sharing of “private sexual material” without the consent of person who is the subject of the material.
Clearly having private sexual material shared publicly is humiliating, embarrassing, and a significant breach of trust. While pressing criminal charges may help victims achieve a sense of justice, it may also be possible for victims to seek justice in the civil realm and receive compensation for their embarrassment, anxiety and distress.
In the 2015 case of Wilson v Ferguson, Justice Mitchell of the Supreme Court of Western Australia considered remedies available to the plaintiff, Ms Wilson, who was a victim of revenge porn. Ms Wilson alleged that the defendant, her ex-boyfriend, Neil Ferguson, had posted about 16 photographs and two videos on his Facebook page depicting her naked, partially naked, or engaging in sexual activities. To make matters worse, as the plaintiff and defendant had met at work, many of the Facebook friends who would have seen the images and videos would be work colleagues. According to the plaintiff, these photos and videos were confidentially shared between the parties while they were together.
Breach of Confidence
Ms Wilson argued that given their relationship and the circumstances, she and the defendant owed each other a duty of confidence not to share or show others the photos and videos. According to her argument, by sharing the photos and videos, the defendant had breached his duty of confidence.
Justice Mitchell affirmed the elements of an action for breach of confidence:
- The information was of a confidential nature
- The information was communicated or obtained in circumstances importing an obligation of confidence; and
- There was unauthorized use of the information.
The ruling found that all three elements were established by Ms Wilson. The Judge stated that information for the purposes of an action for breach of confidence can include images of a person. Justice Mitchell stated that the images had the necessary quality of confidence, and that “the explicit nature of the images was itself suggestive of their confidential character”. Justice Mitchell found that the circumstances in which the defendant received the images of the plaintiff were such that the defendant owed the plaintiff the equitable obligation of confidence to maintain confidentiality of the images.
Remedies for Breach on Confidence
In terms of remedies, Justice Mitchell considered it appropriate to not only grant an injunction stopping further publication of the images, but also an award of equitable compensation. He considered the question of whether equitable compensation can be awarded to compensate a plaintiff for non-economic loss, and moreover, for embarrassment and distress. Justice Mitchell considered that although equitable compensation in Australia has usually only been awarded to compensate economic loss, he thought that the equitable doctrine of breach of confidence should be developed by extending relief available to include compensation for embarrassment and distress arising out of disclosing information, including images, of a personal and private nature.
In determining quantum for compensation, Justice Mitchell took into account that the defendant posted the photos and videos of the plaintiff in order to cause embarrassment and distress to her following the plaintiff ending their relationship. He awarded the plaintiff $30,000 for the significant embarrassment, anxiety and distress she suffered as a result of the defendant sharing the images, and an additional $13,404 for the plaintiff’s economic loss, being the time she took off work.
This case shows that victims of revenge porn may have a means of obtaining financial redress for the humiliation and distress they experience as a result of someone sharing explicit images of them. Sharing such images isn’t just vindictive and a poor reflection of a person’s character – it can also be costly. The law is developing to accommodate technological changes, and when this gives victims a means of redress, this is certainly a positive outcome.