Laws of Eve | Revenge porn – Is it ever worth it?

The end of an intimate relationship is usually traumatic enough without adding the fear of disclosure of private information that had been shared with a once-trusted partner. Typically, the information that becomes the subject of the dispute was willingly shared with a partner by the eventual victim or with his or her consent. When the ex-partner then disseminates the information (photographs or videos) on the Internet maliciously and without the consent of the victim, it becomes what is now commonly referred to as ‘revenge porn’.

Not much is said or written specifically about revenge porn locally, and certainly not in our laws, because violation of this sort is still relatively new. In England, although it was felt that revenge porn could be prosecuted under a number of existing offences, in 2015, Section 33 (1) of the Criminal Justice and Courts Act to make it an offence to “disclose a private sexual photograph or film if the disclosure is made (a) without the consent of the individual who appears, and (b) with the intention of causing that individual distress’. A person discloses the photograph or film if they make it available to another person ‘by any means’ (Section 34(2)). The act, therefore, covers the use of email, text, and instant message services such as WhatsApp and SnapChat, social-media sites such as Facebook and Twitter, and wider publication on the Internet, together with traditional ‘offline’ dissemination.

Irreparable Harm

In today’s world, the risk of irreparable harm that could result from revenge porn is heightened because of the breadth and impact of social media. Although no financial award can truly compensate for the losses that ensue, high awards by some courts show that it is taken seriously. For example, in 2018, four years after explicit sexual images of a woman (only referred to as ‘Jane Doe’ to protect her privacy) were posted on various websites, including Twitter, a woman was awarded US$6.4 million by the United States District Court in California.

There was an even higher award for a couple in Arizona in 2017 after a married woman befriended a man on an online game site and later had romantic and sexually explicit exchanges with him. The married couple was cyber-stalked, harassed, terrorised and defamed to family members and co-workers by the man after the wife ended the online affair. A jury awarded US$8.9 million in damages to the couple.

Closer to home, a court in Trinidad & Tobago in the case of Ho v Simmons Claim No. CV2014-01949, awarded TT$150,000 in damages to the claimant, plus costs, and granted a perpetual injunction to restrain the defendant from disseminating nude or sexually explicit photographs and a video of his former lover. The basis of the claim was breach of confidence on the basis that intimate photographs and videos taken in private were distributed without the consent of the other party after the relationship had ended.

Judge’s Rebuke

The defendant’s assertion that the plaintiff had first distributed the photographs and the video by sending them to his girlfriend was rejected by the court. The judge said that the defendant’s behaviour could not be condoned and that he “... wanted to inflict mental and emotional harm to the claimant”, but he did not spare the claimant in his rebuke. The judge also found that the claimant chose to be in an unconventional relationship with the defendant and, after referring to the “... disturbing trend to immortalise almost every facet of daily life by taking photographs and uploading them unto social media sites”, he said that, “Individuals must take responsibility for their actions and they are charged with the primary responsibility of safe-guarding themselves.”

Despite the fact that there are legal remedies available to victims of revenge porn, the word of caution from the judge in Trinidad and Tobago should be heeded: “The prudence of this contemporary practice of sharing intimate material which often involves sexual images, by electronic means should be weighed against the damage, distress and embarrassment which the broader dissemination of such material can cause.” The award of damages can never be an adequate remedy.

- Sherry-Ann McGregor is a partner, arbitrator and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.