Multimillion dollar revenge porn slap

A software engineer based in the United States (US) has been ordered to pay a Jamaican attorney over $12 million for allegedly causing the leak of photos and videos of their sexual encounter in what has been described as a landmark case of revenge porn.

The order was made in the Jamaican Supreme Court, ending a “novel” lawsuit filed by the attorney, Kimberley Facey, for breach of confidence – an old, rarely-used common-law cause of action, court documents revealed.

The attorney said she elected to file the lawsuit in her name rather than anonymously because “I am somebody”.

“Kim Facey was attacked and Kim Facey answered. The case was personal to me,” she said in response to questions from The Sunday Gleaner.

Amid an increasing number of revenge porn cases reported locally and the prevalence of sex tapes, John Clarke, the attorney who represented Facey, called it a groundbreaking ruling that should serve as a warning to others.

“It is a precedent that can be utilised in the future as it relates to how the court makes an award for leakage of personal image,” he said yesterday.

“It creates, for the first time in our jurisdiction that I am aware of, an authority that the court can look at as a guiding principle on how to treat these matters,” Clarke added during an interview with The Sunday Gleaner.

But Xavier Leveridge, the attorney for software engineer Rodrick Brown, disagreed, saying this was not a case that was determined on its merits.

“It was determined procedurally. So it’s not a case where the judge would have heard the merits of the case and made a decision,” he said.

MENTAL AND EMOTIONAL ANGUISH

The leaked photos and videos, which were splashed across some of the more popular social media platforms, showed Facey and Brown engaging in sexual activities inside a St Andrew apartment in July 2020.

Brown, who is based in New York City, was ordered to pay Facey $11 million in damages with three per cent interest dating back to October 2020 and $480,000 for future medical care following an assessment hearing last September, according to documents seen by The Sunday Gleaner.

He was also ordered to destroy all videos and/or images of Facey that are in his possession or control and a “final injunction” bars him or his agent from releasing, posting or uploading the images.

Facey described in her lawsuit the embarrassment as well as the mental and emotional anguish she endured after she was alerted via social media to one of the video recordings on July 13, 2020.

Her attorney believes the multimillion-dollar award is the court’s way of underscoring the importance of a citizen’s privacy rights and safeguarding the confidence attached to it from any breaches.

“It is a sum that is way larger than what persons would get in a basic false imprisonment claim. So, if another lady is in a similar situation like Miss Facey, they can come forward and say, ‘Miss Facey got $11 million, I think I should get $9 million or $16 million’,” Clarke asserted.

‘INORDINATELY EXCESSIVE’

But the software engineer, through his attorney, has already filed an application in the Court of Appeal challenging the $11 million award for breach of confidence, arguing that it was “inordinately excessive”.

“No judge, properly applying her mind to the evidence, could have reasonably made such an award,” he contended, according to court documents listing the grounds for the legal challenge.

Brown argued, too, that the presiding judge erred in finding that Facey is entitled to costs of future medical care where her claim for injury “being complex post-traumatic stress disorder was not properly made out”.

Leveridge confirmed that the appeal has been filed, but declined further comment when contacted by The Sunday Gleaner on Friday.

The court also granted an order barring Brown from disposing of a St Andrew apartment and a townhouse in St Ann – both registered in his name – as security for the $11 million award, pending the outcome of the appeal.

REVENGE PORN IN

TOP THREE REPORTED CASES

Revenge porn was among the top three categories of 136 reported cyber-incidents in 2020, the Jamaica Cyber-Incident Response Team (JaCIRT) told lawmakers on a parliamentary committee that conducted a review of Jamaica’s Cybercrimes legislation last year.

JaCIRT is the state agency that monitors cyber threats locally.

The other two categories were abusive content and impersonation.

JaCIRT reported then that 70 per cent of the 136 reported incidents were referred to the police cybercrimes unit “as they were deemed to be prosecutable based on the nature of the offences reported”.

But the entity said one of the challenges it faced was that “a number” of reported cases were not followed through to prosecution, the committee said in its report published by the Parliament.

However, the Office of the Director of Public Prosecutions (ODPP), Jamaica’s prosecutorial authority, pointed to several cases as evidence that the Cybercrimes Act is being utilised.

In 2020, a St Andrew man, Donovan Coley was fined $500,000 for breaches outlined in Section 9 of the legislation that deals with malicious communication.

Coley sent four nude photos of his ex-spouse and a total of 200 WhatsApp messages to her new boyfriend after she ended their romantic relationship, according to evidence prosecutors presented in court.

A year before that, Donovan Powell was convicted for a similar offence after he posted pictures and videos of his ex-girlfriend, former American television personality Darieth Chisolm, on the Internet after she ended their relationship.

He was fined $1 million, but his sentence of 12 months in prison was cut in half by the Court of Appeal.

NEED TO BE A STAND-ALONE OFFENCE

The ODPP has been urging lawmakers to consider making revenge porn a stand-alone offence in Jamaica, pointing to similar legislation in the United Kingdom, Canada and Australia.

“It is submitted that our legislature ought to carefully consider the value of treating the consent-based distribution of sexual images as a stand-alone offence … and outline in detail the parameters of this offence and the important statutory defences,” the ODPP suggested.

The parliamentary committee agreed that the revised Cybercrimes Act should include a new sub-section “to make provision for intimate images”.

The amended law has been approved by both Houses, but it is unclear whether it is in effect, officials indicated to The Sunday Gleaner on Friday.

‘FIGHT AGAINST PEOPLE

WHO TRY TO ABUSE YOU’

Noting that victims of revenge porn often tend to remain silent and move on with their lives, Facey signalled that she wants her case to be a powerful example to both men and women that they do not have to cower in silence, but that they can fight back.

“It is not gender specific. Stand up! Be strong! Stand up for yourselves and confront people. Fight against people who try to abuse you. Tolerate no violations and no infractions,” Facey declared to The Sunday Gleaner.

Facey indicated, too, that “people all across Jamaica reached out and shared their experiences or the experiences of family members in similar circumstances. Many didn’t know there was any protection under the law for these violations.”

She expressed the view that the breach of confidence cause of action under which her lawsuit was filed is an effective area of law to hold people to account for such cyber-related violations.

livern.barrett@gleanerjm.com