I read with interest today an article on the BBC news website which was also covered by the Radio 4 Today programme.
It has taken the BBC some weeks to catch up. We commented on this case in a blog on 1st October and I have also discussed the case on local radio.
I believe that the BBC article has missed the important of the case to victims of revenge porn and of sexting.
The case involved a 16 year old who was encouraged by a teacher to send sexually explicit photographs of herself.
The case confirmed that anyone manipulated into sending or receiving a sexually explicit message or image can bring a claim for compensation.
These cases are not likely to be common. Most people send these images voluntarily and there will be a limited number of people who are pressured into sending the images.
I believe the case has a more fundamental importance because it established that you could recover damages where sexually explicit material was shared without consent causing distress.
The case relied on the Wilkinson –V- Downton tort established in 1897 which established that outrageous conduct that causes physical harm or mental distress can give rise to a cause of action.
The clear implications of ABC –V- West Heath and William Whillock seemed to have been missed by the BBC. My firm belief is that this case will give rise to a significant number of cases for the victims of revenge pornography.
The precedents set in the ABC –V- Whillock case will not merely allow those pressurised into sexting to being claims but will also allow people whose images are shared without their consent on the internet to sue.
As I indicated in my previous blog this is potentially a massive area. Spurned partners often seek to exact revenge by publishing intimate photographs on various social media platforms. In so doing they now run the risk of significant damages actions against them.
On the particular facts of ABC –V- Whillock the Claimant recovered damages of £25,000 for this aspect of her case. Anyone who shares pictures of a former partner without that partners consent now runs the risk of a similar.
The other interesting legal fact that is not touched upon by the BBC is that I do not now believe that you will necessarily need to show that you have suffered psychiatric injury as a result of the defendant’s actions. In Wilkinson –V- Downton the defendants appealed on the grounds that the damage caused was merely nervous shock and not a psychiatric injury. This appeal failed. I believe the same will now be true when applying the Wilkinson –V- Downton tort to modern revenge pornography cases. It is self-evident that somebody will be caused distress by having intimate images shared without their consent and I believe that alone will be enough to found a case without the need for psychiatric damage being proved.
For advice in relation to bringing a claim for revenge pornography, please do not hesitate to contact us.