On 27 February 2023 judgment was handed down in the case of FGX v Gaunt  EWHC 419 (KB). General and special damages totalling £97,000 were awarded in a claim arising from the covert recording of naked images of the claimant and their subsequent publication on a pornographic website.
This case appears to be the first of its kind before the civil courts in England and Wales, after a woman sued her former partner for covertly recording her naked and publishing the images online.
The civil claim advanced against the defendant is for (i) intentionally exposing the claimant to a foreseeable risk of injury or severe distress which resulted in injury; (ii) infringement of the claimant’s privacy; (iii) breach of the claimant’s confidence.
It is notable that Thornton J began her judgment by criticising the now widely-used term ‘revenge porn’, since, in her view, the ‘term conveys the impression that a victim somehow deserved what happened to them’ and, for this reason, the description used in the judgment (and this article), is ‘image-based abuse.’
In the ruling, which will no doubt assist lawyers and judges when assessing the level of damages in similar cases, the woman is awarded general damages of £60,000 and special damages of £37,041.61 for consequential financial losses, making a total award of £97,041.61.
The civil claim followed criminal proceedings which were brought after the claimant found a microscopic camera concealed in the bathroom of the home she lived in with the defendant, Stuart Gaunt. The woman, who is not named, also discovered that the defendant had uploaded images of her onto a pornographic website along with a photo of her face so she could be recognised. Gaunt was convicted of voyeurism and other sexual offences in 2020 and received a two-year suspended sentence. He was also ordered to sign the sex offenders register for 10 years.
Civil proceedings were issued and judgment in default was entered when the defendant failed to provide any defence. The hearing before Thornton J was to assess damages.
The case is interesting for privacy lawyers because in addition to a claim in privacy and confidence there was also a claim for intentionally exposing the claimant to a foreseeable risk of injury or severe distress which resulted in injury. When awarding damages in the civil proceedings, the Judge concluded that Gaunt’s conduct caused the claimant to suffer from chronic PTSD, noting the gravity of the impact on her health in that she was ‘one of a minority of cases in which PTSD becomes chronic over several years, causing an enduring personality change’.
The Judge recorded the devastating impact that the defendant’s conduct had on the claimant’s private life and lifestyle, not least in terms of her ability to trust and interact with other people in both a personal and work context. The determination that the continuing availability of the images online will contribute significantly to the claimant’s ongoing distress and impede her recovery is perhaps of particular note, especially given the challenges of determining precisely the extent to which images have been dispersed online in cases such as this and the, at times, even greater challenge of ensuring their permanent removal once identified.
Considering the significance of this case, it is worthwhile analysing Thornton J’s reasons for awarding such substantial damages, and how existing case law has been interpreted and applied in this context.
Whilst no case was identified to assist the Judge directly with the assessment of general damages, the Judge considered a number of authorities including MGN Limited v Representative Claimants  EWCA Civ 1291, Reid v Price  EWHC 594 (QB), Re TP (Kemp & Kemp, Vol 3 C2-002), ABC and WH v Willock  EWHC 2687 (QB) and Bull v Desporte  EWHC 1650 (QB) from which it is possible to draw the following guidance:
- The appropriate compensation for damages in privacy will depend on various factors including most importantly the significance of the private information, the effect on the victim of its disclosure and the extent of publication.
- The effect of repeated intrusions by publication can be cumulative (in the claimant’s case, contributing to the development of chronic PTSD and an enduring personality change).
- An award for psychiatric and psychological harm can be made if there is medical evidence of harm and parties in the public eye may have to endure a certain degree of public interest in their lives (in the claimant’s case she had not sought to put herself into public life in any way).
- When considering the quantum for the intentional infliction of injury, by way of sexual texting and the sending of indecent images, important factors to consider are: (i) the seriousness of the breach of trust and the vulnerability of the claimant, (ii) the psychological impact and (iii) the gravity of the misuse (including whether claimants have contributed to generating the images themselves with encouragement and whether there was any publication of the images).
- Analogy can be drawn between the impact on the claimant in cases such as this and the impact on victims of sexual/physical assault for the purposes of awards made for psychiatric and psychological damage under Section C of Chapter 4 of the Judicial College Guidelines 2022; the highest damages awards are reserved for “severe” cases where there is evidence of permanent effects which prevent the injured person from working at all or at least from functioning at anything approaching the pre trauma level, whereas “moderate” cases (which the Judge determined the claimant’s case to be) and less extensive damages apply where the claimant’s prospects of recovery with professional help are better, but is still likely to suffer from significant disability for the foreseeable future.
Based on the above findings the Judge concluded that the general damages award should be £60,000. She determined that there were aggravating features of the defendant’s conduct that would, in principle, attract an award for aggravated damages, namely the needless uploading of a photograph of her face onto the pornographic website and the evidence that indicates the defendant obtained payment for the images as well as his failure to participate in the proceedings. However, as the diagnosis of PTSD stemmed, at least in part, from these features no separate award of aggravated damages was made to avoid double-counting.
The Judge divided the award of £37,041.61 for special damages between past losses and consequential financial losses.
The award for past losses included the cost of hotel accommodation after the claimant had to move out of the house she shared with the defendant, as well as cost of furniture and part of the cost of a wasted holiday. An award was also made for past treatments the woman received from a consultant psychiatrist and therapist, with a modest amount allocated for dentistry work (in the absence of expert evidence that the woman’s teeth grinding was an effect of the psychiatric injury she had suffered). The Judge also considered it reasonable to apply interest at half the special account rate.
The awards for consequential financial losses included the cost estimated for the removal of images from the internet and costs of a further round of treatment specified in the medical report (including an annual pre-payment certificate for prescription medications for 2 years).
The judgment provides a valuable precedent for assessing damages in civil cases involving the intentional infliction of harm, misuse of private information and breach of confidence. The Judge’s introduction of the term “image-based abuse” (to replace “revenge porn”) as well as her application of guidelines used to determine the value of personal injury claims is likely to be a welcome development for victims of similar misconduct.
Andrew Willan is a partner and Nataly Tedone an associate at Payne Hicks Beach.
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