Incidents of so-called ‘revenge porn’ have been increasing in recent years, usually after an acrimonious break up.
In a first for Western Australia, newly minted Justice Mitchell took the step of awarding equitable compensation for what is colloquially known as ‘revenge porn’. The decision of Wilson v Ferguson is an important one as it firmly establishes the jurisdiction of Courts to take action in relation to revenge porn.
The background to the case is uncomplicated. The Defendant acquired, by various means, a number of images of Ms Wilson either nude or partially nude.
The relationship between Ms Wilson and Neil Ferguson later broke down and, as found by Mitchell J, Mr Ferguson posted 16 of those photographs and two videos to his Facebook page (which meant that the images were accessible to friends and colleagues of Ms Wilson).
Ms Wilson claimed that as a result of the mental anguish caused by the publication of those images she required time off work. Ms Wilson commenced the proceedings seeking an injunction, damages and costs. The claim was based on the equitable doctrine of breach of confidence.
From the judgment, Mr Ferguson appears to have taken little part in proceedings other than to file a defence. He did not appear at trial.
Justice Mitchell referred to Kwok v Thang and Giller v Procepets as support for the application of the breach of confidence principle. Those cases dealt with an injunction prohibiting the publication of ‘hidden camera’ recordings of sexual activity, although in Giller the Plaintiff became aware of the recordings shortly after they were taken.
Moving on to damages, his Honour referred to reasons of Gummow J where he observed that a Court has ‘inherent jurisdiction to grant relief by way of monetary compensation for breach of an equitable obligation, whether of trust and confidence’.
However, it is trite that Courts only award damages for mental hurt or distress in very limited circumstances. Ultimately, Justice Mitchell decided that compensation could be awarded in these circumstances – relying on the decision in Giller and noting that his Honour considered himself bound to follow it, unless he considered it was plainly wrong.
Justice Mitchell did not consider Giller to be plainly wrong. Rather, he agreed with the Victorian Court of Appeal that the equitable doctrine of breach of confidence should be developed to include compensation for embarrassment and distress arising from the publication of revenge porn. For those reasons, he made a modest award of compensation which amounted to $35,000.00 plus $13,404.00 in past economic loss from Ms Wilson’s time off work.
Will the Floodgates Open?
What remains to be seen is whether the decision will ‘open the floodgates’ on breach of confidence claims arising from revenge porn. This remains to be seen.
I think a cautious approach should be taken to revenge porn cases in the future. This matter was more unique as the publication of the images was not merely on the broader internet but the publication occurred in a targeted manner, immediately broadcast to, and seen by, Ms Wilson’s friends and colleagues.
I suspect that had the images been posted on a generic website, then his Honour would have been less inclined to grant compensation or that any award would have been even more modest.
I think that the audience the images were published to is what was the primary factor for the result in this case.
As a final note, an application for indemnity costs failed. Ms Wilson relied on Mr Ferguson’s failure to participate as the grounds. It is perhaps surprising that the application was not made on the basis that indemnity costs should be awarded to mark the Court’s disapproval of Mr Ferguson’s conduct.