Social media is taking over our lives. There are over a billion monthly active users of Facebook. 500 million tweets are sent every day. The majority of posts and tweets are harmless and allow us to share humorous or mundane thoughts. As well as being a welcome distraction from the work piling up on your desk social media can have a darker side. There are already various studies linking social networking with marital problems, and more recently there has been the growing issue of revenge pornography.
During the course of a relationship intimate photographs or videos are exchanged. I am told that “sexting” is now a way of life amongst the younger generation. A difficulty arises when the relationship ends acrimoniously, and one of the parties decides to share these most private of photographs with a billion other people on Facebook. It takes a matter of seconds that can last a lifetime. The shame and distress caused cannot be underestimated.
There is, however, help at hand for the victim. The Queens Bench Division of the High Court of Justice handed down a judgment this week which paves the way for damages claims for the victims of revenge pornography. The claimant in this case was a pupil at a special educational needs school. She alleged that she was groomed by a teacher at the age of 16 and that he encouraged her to send indecent images of herself to him. The teacher admitted receiving these indecent images, and indeed had already been convicted in the criminal courts on 4 counts of possession of indecent photographs of a child. The argument advanced by the claimant was that even if there was no physical contact between her and the teacher, his encouragement of her to take and send indecent photographs of herself, and the ensuing sexual banter by text amounted to the intentional infliction of harm – giving rise to a damages claim.
This argument is based on the tort established in the case of Wilkinson –v- Downton which was decided in 1897. As a practical joke Downton told Wilkinson that her husband had been seriously injured in an accident. The effect of Downton’s statement was a violent shock to Wilkinson’s nervous system resulting in weeks of suffering and incapacity. Wilkinson successfully brought a damages claim against Downton even though she had suffered no physical injury or recognisable psychiatric injury as a result of the joke. This case established that a party may seek recovery of damages for outrageous conduct that causes physical harm or mental distress.
The judgment in ABC –v- Westheath 2000 Limited and Whillock handed down this week clearly shows a willingness on the part of courts to extend the Wilkinson and Downton ruling to cover the incitement of a child to send indecent images. In the ABC case – and by further extension a claim against a spurned lover – who takes it upon themselves to share intimate photographs with the wider public via social media, with the intention of causing distress their former partner. At paragraph 89 of his judgment Sir Robert Nelson concluded :-
“I should note, however, that I am entirely satisfied that a claim under Wilkinson –v- Downton as explained in Rhodes is established”.
The judge even went so far as to give indication as to the damages he would have awarded were this case purely for the distress caused by the indecent images stating:-
“Were this to have been a Rhodes case alone I would have assessed the pain suffering and loss of amenity at £25,000.00”.
The importance of this judgment cannot be underestimated. Any child who has indecent images taken of them will now have a claim in damages for the distress caused. Any adult whose images are shared without their consent will potentially have a claim under his tort of intentional infliction of harm which was clarified in a judgment of earlier this year (James Rhodes –v- OPO 20th May 2015).
As a direct result of a practical joke in 1897, modern day victims of revenge pornography can now bring substantial damages claims against their former partner for the distress that they have suffered.
Farleys Solicitors have a department that specialises in claims of this nature. If you wish to discuss any aspect arising from the above please do not hesitate to contact our specialist team of abuse lawyers who will be happy to help on 0845 050 1958. Alternatively please complete an online enquiry form.