A recent decision of the Supreme Court[1] has again demonstrated the significant risks posed by inappropriate use of the internet.
The facts require the briefest treatment. The plaintiff and defendant had previously been in a personal relationship. That relationship failed and the consequences of revenge ultimately found its way to the Supreme Court of Western Australia.
The Supreme Court was called upon to use the equitable jurisdiction of the Court and the dry and technical remedy of breach of confidence, to deal with the abuse by the defendant of the plaintiff by posting explicit images of the plaintiff on various sites on the internet.
There was no suggestion that the images were otherwise than created in consensual circumstances while the relationship was on foot. Some of the material was taken on the plaintiff’s phone. Without her permission, the defendant accessed the plaintiff’s phone and emailed the materials to himself. However, the Court readily found that they were intended to be very private. The plaintiff gave evidence which was accepted that the materials were created in a circumstance of trust between the parties where it was understood that the materials would be private. After the relationship broke down self evidently in vitriolic circumstances, the defendant posted the images on his Facebook page, it was found, with an intention to inflict mental harm, distress, humiliation, loss of self esteem and embarrassment on the plaintiff.
The Facebook page was accessible to many co-workers of the plaintiff and the defendant. They were posted with a note that could readily be interpreted as the defendant seeking to take his revenge on his former partner.
The manner in which the materials were posted made it probable that they were republished by others who were able to access them.
After about seven hours, the material was removed from the Facebook page. Not unsurprisingly, the plaintiff was left feeling “absolutely horrified, disgusted, embarrassed and upset”. This was exacerbated by the fact that the material was freely distributed at the workplace where both the plaintiff and the defendant worked.
To right the wrong, the plaintiff was left with an unenviable choice: to commence proceedings in a very public place and to lay bare the details of the incident.
The plaintiff pursued remedies of injunctive relief to prevent the defendant from further publishing the information and for compensation. Her action was grounded in a breach of confidence on the basis that the Court would restrain the publication of confidential material improperly or surreptitiously obtained or of information in part or in confidence which ought not to be divulged. As the trial judge noted, one of the earliest cases in this area involved etchings created by Queen Victoria and Prince Albert for their own use and not for publication which were surreptitiously taken and sought to be published. That decision marked the foundation of the law restraining the publication of images, including images captured from hidden video cameras.
The Court was readily able to conclude that the material in the images was intended to be confidential and have the necessary quality of confidence. Further, the content of the images was suggestive of a confidential nature. The manner in which the defendant obtained the images, including by emailing them from the plaintiff’s phone to himself without her knowledge or consent assisted in importing an obligation of confidence. Further, there was an obvious misuse of the material by posting them on a Facebook page. In those circumstances the Court had no difficulty in fashioning the relief sought and in awarding equitable compensation.
The case is a reminder, in an extreme factual example, that not all information is public and that not all information obtained, whether properly or improperly, ought to be shared. Whether the remedy rights the wrong is an entirely separate question.
There are many lessons in this decision. The old remedies remain very relevant in the modern digital age. They remain available to parties and they provide the reminder that pausing before hitting the send button is often the wisest way forward. The case also reminds us that revenge can backfire. It also reminds us that pursuing one’s rights may come at a cost of publicity.
