In Wilson v Ferguson [2015] WASC 15 the Supreme Court of Western Australia dealt with a "revenge porn" case.
What happened?
The plaintiff and defendant were each employed at a Fortescue Metals Group mine site as fly-in-fly-out workers. They met in 2011, moved in together in 2012, and were together until August 2013 when the relationship broke down.
During their relationship, the plaintiff and defendant exchanged sexually explicit photos of each other. The defendant also obtained, from the plaintiff’s phone, 2 sexually explicit videos of her, which he undertook not to show to anybody else.
The relationship deteriorated as the plaintiff suspected the defendant was cheating on her.
In August 2013, she texted him saying she wanted nothing to do with him.
In response, at 5.20 PM on 5 August 2013 the defendant posted via his Facebook page, 16 explicit photos and 2 videos of the Plaintiff either naked or semi-naked and engaged in sexual activities. They were accompanied by the caption ‘Happy to help all ya boys at home… Enjoy!’
The photos and videos were available to his 300 ‘Facebook friends’, many of whom worked on the same mine site. The photos and videos were taken down by the defendant at 7.00 PM that night, in response to requests from the plaintiff via text messages.
Because of the images being published, the plaintiff could not sleep, undertook counselling, and was unable to work and took leave without pay until 30 October 2013, losing wages of $13,404.
The defendant’s employment at the mine site was terminated on 14 August 2013.
Summary of the law the Judge relied on
The Defendant did not take an active part in the proceedings other than filing a defence, and was not present at the trial.
The Judge inferred that the defendant wanted to cause the plaintiff extreme embarrassment and distress, and was aware the images were private and he did not have the plaintiffs’ consent to show them to any other person (at [33]).
The Judge adopted the principle described by the Court in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50, in relation to proceedings for a breach of confidence. That is that a court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged (at [43]).
The essential elements of an equitable action for breach of confidence are that the information was of a confidential nature, that it was obtained in circumstances importing an obligation of confidence, and that there was unauthorised use of the information (at [46] citing West Australian Newspapers Ltd v Bond [2009] WASCA 127).
The Judge referred to Gleeson CJ’s comments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [34] – [35], that a private image may constitute confidential information, and that “the requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private” (at [53]).
For the reasons below, the Judge found that the defendant had breached his equitable obligation owed to the plaintiff to maintain the confidentiality of the images (at [55]).
Firstly, the intimate images of the plaintiff had the necessary quality of confidence about them, which was clear from their explicit nature, and the discussions between the plaintiff and defendant in which the plaintiff emphasised their deeply personal nature ([56]).
Second, the circumstances in which the defendant obtained the images imposed an obligation of conscience to maintain the confidentiality of the images ([57]). The nature of the photographs and the circumstances in which they were obtained made it obvious to a reasonable person standing in the defendant’s shoes that the images were for his eyes only and not to be disclosed to anyone else. Such disclosure would cause extreme embarrassment and distress to the plaintiff, which in fact was the whole reason for his publishing the images ([58]).
Third, the defendant clearly misused the images by making them available for viewing and downloading to hundreds of Facebook friends, many of whom worked with both the defendant and the plaintiff. This was extremely distressing to the plaintiff as shown by her needing to take time of work and undertake counselling ([59]).
Why did the Judge award $48,404?
The Judge granted a permanent injunction to prevent the defendant from publishing photos or videos of the plaintiff engaging in sexual activities or in which the plaintiff is naked or partially naked. In addition, the Judge awarded equitable compensation for the breach of confidence.
The Judge referred to the case of Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73 as authority for the Court’s inherent jurisdiction to grant relief through monetary compensation for the breach of an equitable obligation, whether of trust or confidence (at [69]).
However, the question was whether equitable compensation could be awarded to compensate the plaintiff for non-economic loss (embarrassment and distress). Until recently, equitable compensation was only awarded to compensate for economic loss ([72]).
The Judge relied on Giller v Procopets [2008] VSCA 236 in which the Victorian Court of Appeal held that monetary compensation for emotional distress caused by the release of confidential personal information is available in the exercise of the Court’s inherent equitable jurisdiction ([73] – [78]).
The Judge found that technological advances have increased the ease and speed with which communications and images can be disseminated, therefore in many cases there will be no opportunity for injunctive relief ([80]).
Therefore, the approach taken in Giller, is an appropriate incremental adaptation of the established equitable principle, to accommodate the nature of electronic communications in contemporary Australia ([82]).
The Judge held that compensation should take account of the fact that the publication was intended to cause harm to the plaintiff, however the plaintiff had not sustained a psychiatric injury, therefore the amount should not be disproportionate to amounts commonly awarded for pain and suffering in tortious personal injury cases ([85]).
He awarded $35,000 in addition to economic loss of $13,404.
What about legal costs?
The plaintiff sought indemnity costs. However, the Judge applied the principles set out by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S), [10], that the discretion to award indemnity costs may be exercised where the unsuccessful party has engaged in unreasonable or improper conduct, such as persisting in a case which is hopeless (at [88]).
The Judge considered that the defendants’ failure to admit the plaintiff’s claim was not so unreasonable as to justify awarding indemnity costs, the plaintiff was simply put to proof of her case ([89]).
Therefore, the Judge ordered the defendant pay the plaintiff’s costs of the action.
