In the current digital age photographs and videos can be taken anywhere, anytime and shared with anyone. Images and videos shared between consenting adults of a sexual nature has earned the moniker of ‘sexting’ and appears to be on the uptick, particularly with the rise in smartphone capability. Coupled with this is the risk of ‘revenge porn’, where a jilted lover will hold hostage or ransom those images and videos with a threat of publication online for the world at large to see.
Recently, the Supreme Court of Western Australia in Wilson v Ferguson  WASC 15 was charged with determining the appropriateness of an injunction and damages in the very circumstance of revenge porn publication.
The Plaintiff, Ms Caroline Wilson, was involved in a relationship with the Defendant, Mr Neil Ferguson, which commenced in November 2012. Both the Plaintiff and Defendant were fly-in-fly-out workers at a Cloudbreak, Western Australia, minesite.
During the course of the relationship the Plaintiff and Defendant would exchange photographs and videos of a sexual nature using their mobile phones. The Plaintiff gave evidence at trial that there was an understanding with the Defendant that the photos and videos were to remain private and other people would not see them.Alas, the relationship soured and on or about 5 August 2013 the Defendant posted 16 of the explicit photographs and two videos to his Facebook page, where he had about 300 friends, many of whom worked at Cloudbreak with the Plaintiff.
After begging the Defendant to remove those images and videos, the Defendant did so at about 7.00pm on that day. The damage had been done, however, with the images and videos viewed by at many of the Plaintiff’s co-workers at Cloudbreak.
A BREACH OF CONFIDENCE?
His Honour Justice Mitchell of the Western Australia Supreme Court considered the well-established principles for a breach of confidence action applied to the circumstances of the Plaintiff’s plight. His Honour found that the nature of the explicit images, the manner in which those images were obtained and their misuse by the Defendant were sufficient enough to satisfy the Plaintiff’s complaint of a breach of confidence due to the Defendants actions and publication.
His Honour granted the Plaintiff’s claim for an injunction against the Defendant in order to prevent the further use and publication of the images.
However, His Honour had a more difficult task in assessing equitable compensation suffered by the Plaintiff due to the Defendants breach of confidence in publishing the images and videos. His Honour battled with the conceptual hurdles of damages being limited to economic loss or where there is an actual psychological injury arising. His Honour had regard to an earlier decision in which revenge porn had been distributed via the old-fashioned medium of video-tape, and considered that “it would have been difficult to predict the current pervasiveness in Australian society of the internet, social media platforms utilising the internet and the portable devices which interface with the internet and those platforms.” His Honour went on to remark: -
“The technological advances to which I have referred have dramatically increased the ease and speed with which communications and images may be disseminated to the world… The process of capturing and disseminating an image to a broad audience can now take place over a matter of second and be achieved with a few finger swipes of a mobile phone… In many cases, such as the present, there will be no opportunity for any injunctive relief to be sought or obtained between the time when a defendant forms the intention to distribute the images of a plaintiff and the time when he or she achieves that purpose”.
His Honour found that in the circumstances of the Plaintiff, it was warranted to award her equitable compensation for the damage sustained due to significant embarrassment, anxiety and distress. His Honour found an award of $35,0000 for this pain and suffering on top of a proven economic loss claim by the Plaintiff of $13,404 appropriate.
WHAT DOES THIS MEAN?
In Queensland specifically the common law door is slightly ajar for a claim for breach of privacy, in certain (horrible) circumstances. The Commonwealth has also discussed certain amendments to the Privacy Act 1988 (Cth) which would institute a statutory cause of action for breaches of privacy, though further action on this front has been stalled.
The decision of Wilson v Ferguson adds fuel to the fire of establishing either a statutory or common law tort for invasion of privacy. Due to the ever increasing digitization of our everyday lives and the pervasiveness of social media this may be an issue that raises its head sooner rather than later.
For a practical tip: if you don’t want to risk it being shown to the world, don’t share it with your mobile phone.
A copy of the decision of the Western Australia Supreme Court can be found here.