Thanks to the court’s decision in a case brought against former West Indies’ cricketer, Lendl Simmons, victims of revenge porn may be able to get compensation against the person who released their intimate photos or videos. 

 

Let's take a closer look at the judgment. The important facts to remember are:

 

• Therese was involved in an affair with Simmons during which time several nude photographs and sex videos were sent by Therese to Simmons (we'd refer to this below as the 'intimate media').

 

• when their relationship came to an end, Therese informed Simmons’ significant other of the affair.

 

• Simmons reacted violently and was intent on destroying Therese. 
   

• in retaliation, Simmons sent the intimate media to his friends, Therese’s friends and even the father of Therese's youngest daughter.

 

• Simmons admitted that he took the intimate media in the first place because he didn’t trust Therese and wanted something to hold over her head.

 

The decision must be considered against the background that:

 

• prior to this decision, there were no local laws which would have helped Therese get redress, whether civil or criminal.

 

• countries such as England and Wales (although our laws are based on theirs and our case law often develops with theirs) have additional protections through their regional and international treaties which help protect persons in Therese’s position (such as the European Convention on Human Rights and Fundamental Freedoms 1950 and the Human Rights Act, 1998).

 

• these international treaties may provide protection by creating a right to privacy and have developed the English law in this area considerably.
   

• the only comparable provision locally is the constitutional right against the misuse of information but, because it’s a constitutional right, you can't enforce it as against another private individual. It protects individuals against public entities - that is, the government.

 

• There is no right to privacy in the Caribbean.

 

How then were damages awarded?

 

Breach of confidence came to the rescue. Generally, for there to be a claim for breach of confidence the requirements are:

 

• the information must have the necessary quality of confidence – which basically means it can’t be something which is either public knowledge or property - in this case, that was the intimate media which Therese sent to Simmons.

 

• the circumstances in which the information (or, in this case, the intimate media) was shared must have had an obligation of confidence - in this case, Therese’s and Simmons’ sexual relationship, by its very nature, was capable of implying a duty of confidence.

 

• a subsequent and unauthorised use of that information by the recipient to the detriment of the sender - this occurred when Simmons distributed the intimate media.

 

It seems clear enough that a duty of confidence arises where intimate media is shared between persons who share a romantic or sexual relationship. Although the types of relationships which this law could cover were not specified, the law develops to recognise society's changing needs which now include significantly more casual relationships than those of the past. It is likely that most, if not all, casual relationships, whether romantic or sexual, and however short-lived, will be covered.

 

Does this apply to third parties?

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Let's now assume that in addition to the Therese (the confider - person A) and Simmons (the recipient or confidant - person B), there's a third party (person C) as well. 

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The cause of action is clear enough when there's been a breach of confidence between A and B. How does the law treat when A has shared intimate media with B but it's person C who distributes it? This could arise in two cases:

 

• where B sends the intimate media to C who then distributes it; or
   

• where C innocently or surreptitiously obtains the intimate media - such as if C steals either A or B's phone on which the intimate media is stored, or if C gains access to the cloud storage on which the photos are stored. Remember, in this scenario, neither A nor B sent C the media. C obtained it by his own means.
   

In these cases, the duty can extend to C if he received the confidential information (the intimate media in this case) whether from B, accidentally, unconscionably or surreptitiously. The law doesn't focus on the relationship as the basis of the duty of confidence but, instead, an independent duty arises. The test to impose this independent duty is whether a reasonable man standing in C's shoes would have realised on reasonable grounds that the information was confidential.

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As a matter of evidence, it may be difficult for victims to prove that C was the first person to share the intimate media. If the intimate media was shared after this, this may defeat a claim since any persons who re-share the intimate media (persons D, E, F, G etc) are arguably sharing something which is already in the public domain and which cannot be confidential. Whether D, E, F and G etc owe a duty to A independently is unclear.

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Why doesn't the judgment go far enough?

 

First, it’s questionable whether the decision adequately recognises the maliciousness which is often the basis for revenge porn. Simmons described Therese as being ‘just a f—k’ and, although aggravated damages were awarded, once those photos were released, there’s no real end to Therese’s violation. It will happen every time those photos are shared or someone else sees them whether it be in the next day, the next week , the next month, the next year or the next ten years. Once it’s on the internet, it exists forever. 

 

Second, although Therese was awarded $150,000.00, this sum included an award of aggravated damages. Aggravated damages although compensatory are slightly different in their purpose and are meant to compensate the victim for any aggravating factors (such as, the manner of sharing the media). Aggravating facts don't arise in every case and if there aren’t any, there won’t be any aggravated damages. Without the aggravated damages, Therese was awarded $90,000.00. 

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A similar award is not guaranteed since this would also be based on the nature of the media shared, the extent to which it was shared and likely the defendant's behaviour.

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The question is, is this award good enough for a violation that can continue indefinitely?

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This is where the legislature must come in to criminalise the actions of persons such as Simmons. It's not the court's role to legislate and decisions must be based on existing law. This means that case law develops the law very slowly and incrementally. Case law is also confined to developing the law that applies to the specific facts before it.

 

Legislation, on the other hand, applies broadly. This will create a proper deterrent and may provide victims some more comfort than the existing statute presently gives. 

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We are miles from where we started but we've definitely not yet reached our destination.

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Last updated 05 November 2021.