In the case of Wilson v Ferguson ( WASC 15), Western Australia Supreme Court Justice Robert Mitchell found the ex-boyfriend had breached the plaintiff’s confidence and caused her “humiliation, anxiety and distress”.
He also granted the plaintiff a permanent injunction.
Caroline Wilson sued her former lover Neil Ferguson alleging he breached her confidence when he posted 16 photographs and two videos of her “either naked or partially naked and, in some cases, engaging in sexual activities” on his Facebook page on August 5, 2013.
Ferguson did not plead a positive defence and despite being notified, failed to appear at trial.
Wilson and Ferguson were both “fly-in/fly-out” workers at Fortescue Metals Group’s Cloudbreak mine in the Pilbara.
They commenced a relationship in in November 2012 and lived together at Ferguson’s home in Maida Vale.
During the course of their relationship they exchanged sexually explicit photos of themselves. On one occasion Ferguson forwarded a sexually explicit video Wilson had taken of herself on her mobile phone to his own phone.
Justice Mitchell described Wilson as “an honest and forthright witness” and accepted her evidence that she exhorted Ferguson not to show any of the material to anyone else, but that he had threatened to post the material on Facebook and YouTube during arguments.
After an argument – via text messages – in which Wilson dumped him, Ferguson posted the sexually explicit material on his Facebook page along with the following comment:
‘Happy to help all ya boys at home…enjoy!!’.
Later the same day he added another comment:
‘Let this b a fkn lesson.. I will shit on anyone that tries to fk me ova. That is all!’
And later texted her in the following terms:
“Fkn photos will b out for everyone to see when I get back you slappa. Cant wait to watch u fold as a human being. Piece if shit u r.”
After the plaintiff begged Ferguson to take the material down, he did so at 7pm.
The judge inferred that:
“The defendant’s conduct indicates that he was well aware that the images were regarded by the plaintiff as private and that he did not have her consent or authority to show them to any other person.”
Justice Mitchell accepted evidence given by another male worker at Cloubreak who said he and several others had seen the Facebook posts and that they had been widely discussed at the “male-dominated” site.
He found that publication of the material had the intended effect on the plaintiff – she was “absolutely horrified, disgusted, embarrassed and upset. She felt particularly humiliated, distressed and anxious”.
He accepted the plaintiff’s evidence that she was still undergoing counselling, noting that as a result of the incident, the Ferguson’s employment at Cloudbreak was terminated.
Breach of confidence
Justice Mitchell easily found the material to be confidential in nature.
“Intimate photographs and videos taken in private and shared between two lovers would ordinarily bear a confidential character, and be implicitly provided on condition that they not be shown to any third party.”
“The circumstances in which the defendant obtained the images of the plaintiff were such as to impose on the defendant an obligation of conscience to maintain the confidentiality of the images.”
His Honour found the defendant deliberately misused the images “by posting them on his Facebook page, so that they were accessible to hundreds of his ‘Facebook friends’, many of whom worked with both the plaintiff and defendant”.
“His response to the end of his romantic relationship with the plaintiff was to seek to hurt her by using private information obtained in confidence during the course of the relationship.”
Justice Mitchell granted a permanent injunction in the following terms:
“The defendant shall not, either directly or indirectly, publish in any form any photographs or videos of the plaintiff engaging in sexual activities or in which the plaintiff appears naked or partially naked (including with breasts exposed)…”
His Honour determined damages at $48,404 – $13,404 for loss of income and $35,000 for “embarrassment and distress occasioned by the disclosure of private information” – agreeing with the 2008 Victorian Court of Appeal decision in Giller v Procopets.
“The equitable doctrine of breach of confidence should be developed by extending the relief available for the unlawful disclosure of confidential information to include monetary compensation for the embarrassment and distress resulting from the disclosure of information (including images) of a private and personal nature.”
“The not uncommon contemporary practice of couples privately engaging in intimate communications, often involving sexual images, by electronic means, the damaging distress and embarrassment which the broader dissemination of those communications would ordinarily cause and the ease and speed with which that dissemination can be achieved should inform the way in which equity responds to a breach of the obligation of confidence.”
This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.