Sexting is now part of our society, it is even recognised in the Oxford Engligh dictionary.  The recent case of ABC v (1) West Heath 2000 Limited and (2) William Whillock (“WW”) shows how sexting can result in civil liability and compensation.

Background

59 year old WW was Vice Principal and Child Protection Officer at a special educational needs school, attended by the 17 year old Claimant (“C”). In 2010, an intimate relationship between WW and C , came to light after another teacher found sexually explicit texts and indecent photographs on C’s mobile phone. WW pleaded guilty to four counts of possession of indecent images.

In 2013, C brought civil proceedings against both the school and WW for personal injury caused by sexual assault and being encouraged to exchange messages of a sexual nature. The court found allegations of sexual touching, fondling and digital penetration proved, but there was insufficient evidence of oral sex and rape. 

C was awarded £35,000 in damages, the court made clear that £25,000 of this related to the sexting element of the claim.

How does sexting give rise to a claim?

The court applied the tort of “intentionally causing physical or psychological harm” and found WW’s texts to be in breach. The law in this area was set out in the earlier case of Rhodes v OPO which defined a 3 stage test:

  • Conduct: conduct or words directed towards a Claimant that were not justified or for which there was no reasonable excuse.
  • Mental: an intention to cause severe mental of emotional distress or physical harm.
  • Consequence: physical injury or a recognised psychiatric illness.

The court accepted the conduct and consequence elements had been established.  WW acted unjustifiably towards C by emotionally manipulating/encouraging her to send indecent images and engaging in sexual banter in the texts. This led to C suffering an adjustment disorder.

When dealing with the mental element of the test, the court had to consider the argument that as the messages sent by WW were not shared or published, there was no actual intention to cause C distress. This argument did not succeed however. The court referred to the judgement in Rhodeswhich said “there are statements (and indeed actions) whose consequences or potential consequences are so obvious that the perpetrator cannot realistically say that those consequences were unintended”. Of VW the court held that it must have been “obvious that the illicit relationship would…cause nothing but harm to the vulnerable Claimant…and those consequences must have been entirely clear and obvious” .

What does this case mean for the future?

This case demonstrates how the act of sexting can give rise to civil liability and how an employer can be held vicariously liable for the sexting of their employees.  Whether it signals the start of a tide of sexting cases however is debatable.  

The NSPCC commented in the media that “there is a danger young people could just use this as a way to get cash by suing one another”.  An opening of the floodgates seems unlikely however. This decision was based on some unique facts which are unlikely to arise in most cases.

Firstly, C was a vulnerable student at a special educational needs residential boarding school. It is clear that the court considered this an obvious abuse of trust and that WW “helped to ensure that a vulnerable person was made more vulnerable”.

Secondly, shortly before trial, an application to amend the defence to raise the issue of consent was rejected by the Court As a result, there was no consideration of reasonable excuse when determining the ‘conduct’ element of the Rhodes test and all proven ‘sexual activity’ between C and WW, regardless of age, had to treated by the Court as abusive.

Thirdly, the court considered WW to be clearly grooming C and that his recklessness as to an obvious consequence of the texts sent by WW was sufficient to meet the ‘mental’ element of theRhodes test.

Finally the age gap of 39 years between WW and C was an influential factor.

This decision is unlikely to be applicable to cases of young people sexting each other, where there is unlikely to be an intention to cause severe mental of emotional distress or physical harm.  There is growing movement to distinguish sexting between children from sexting involving adults. The government are currently working on plans to ensure that children involved in sexting do not face prosecution. This is in recognition that sexting has become a routine part of the process of growing up and should not result in youngsters being branded as criminals.