Tuesday, November 21, 2017

Simmons to pay $150,000 in revenge porn case

Lendl Simmons ordered to pay $150,000 in compensation for leaking sexually explicit photographs of Therese Ho. Photo courtesy CCN TV6


WEST INDIES Cricketer Lendl Simmons has been ordered to pay $150,000 in compensation for leaking sexually explicit photographs of Therese Ho, an account executive with whom he had an extra marital affair.

The ruling was handed down in the Hall of Justice, Port of Spain on Monday, by Justice Frank Seepersad who said there was a disturbing trend to immortalise almost every facet of daily life by taking photographs and uploading them unto social media sites.

"Such activity should also be cautiously reviewed, since the material that is posted may cause a serious compromise to the subject's personal security as profilers and deviants can predict movements and patterns of behaviours".

During the sexual relationship between Simmons and Ho, several photographs were taken by them, some of these photographs depicted Ho nude and two of the photographs depicted her engaged in fellatio with Simmons. After their relationship ended some of the photos were allegedly shown to other people, and as a result, Therese Ho filed action, seeking an injunction restraining Simmons from disseminating the photos.

She also asked that the photos be destroyed, and sought compensation for breach of confidence, and aggravated damages.

Ho, a 24-year-old mother of two, testified that during her relationship with Simmons, which stated in March 2013, she took nude photos of herself and sent them via WhatsApp to the Simmon's phone for his private use when he was out of the country. She testified that she was aware that Simmons was living with 'Kabrina' who was the mother of his daughter but she said Simmons told her that it was just an arrangement of convenience.

Eventually, she stated that she had concerns over the future of their relationship and ended it. Her evidence was that after the relationship ended she felt obligated on a moral level to inform Kabrina of her relations with Simmons. This disclosure, she said, was met by a violent reaction from Simmons who then distributed the photos to several people close to her including the father of her youngest daughter, her friends, as well as to some of his own friends. The purpose of this disclosure she says was to embarrass and shame her.

Ho also testified that notwithstanding attempts by her and her friends to plead with the Defendant for him not to distribute the photos, Simmons was intent on destroying her and did so by distributing them. As a consequence, Ho said she was subjected to public ridicule and embarrassment and she suffered from suicidal thoughts and became frustrated as she had to live in shame.

The judge found that when Simmons testified, he did not dispute that he had sexual relations with Ho but denied that they were "in a relationship". Simmons said that at all times they were both involved with other persons, he with Kabrina and she with Kasi. He stated that he sent some of the photos to Kasi but that this was done only after Ho had shown some of the photos to Kabrina.

Justice Seepersad found that the thrust of Simmons' defence was that it was Ho who breached any confidentiality that existed in relation to the photos when she showed them to Kabrina and he said she did this as she wanted to disrupt his family life because he had ended the sexual relations that they enjoyed.

 

What the Judge said

Justice Seepersad noted that in this jurisdiction, no action can be founded based on the failure to respect the privacy of a person.

"Given the rapid pace with which the face and fabric of the society has changed and cognizant of the infinite reach of social media, it cannot be denied that the privacy of the person is under attack and there is dire need for the enactment of statute to afford protection for citizen's personal privacy".

Seepersad said: “It must also be recognized that while the Courts in the United Kingdom are now obligated to apply the law in relation to breach of confidence in a manner that is consistent with that Nation's obligations under the Human Rights Act 1988 and its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms, no such obligation exists in this jurisdiction.

The instant case reinforces this Court's belief that it cannot confine itself to a myopic view of the law and in the absence of legislative protection, the common law concept of Breach of Confidence has to be moulded so as to address modern societal demands. The law has to be dynamic and has to develop in such a way to ensure that it remains relevant and it must be recognised that there is an obligation of conscience which requires that videos, photographs and/or recordings that capture private intimate relations, should be clothed with a quality of confidentiality.

There can be no circumstance that is more private and confidential than where parties are engaged in consensual sexual activity in private. In such a scenario it is unlikely to expect that there would be an express agreement by the parties that their liaisons would be confidential but in such a circumstance an obligation of confidentiality can and must be implied. Consequently, all photographs and recordings which capture sexual practices conducted in private should only be disseminated where the express consent of all the parties involved has been obtained.

This Court is of the view that the position adopted in Giller v. Procopets (supra) should be followed in this jurisdiction and this Court finds that the photos in this case are covered with a cloak of confidentiality and that a confidential relationship existed between the parties. The distribution of sexually explicit images including the uploading of such material unto the internet, without the consent of the depicted subject cannot be condoned in civilised society. The possession and dissemination of such sexually explicit material can be used as a tool of blackmail, intimidation and/or revenge and this can result in the infliction of hurt, pain and damage to the depicted subject. On the facts before the Court there was a breach of confidentiality when the photos were distributed, but the issue to be determined is 'who was first responsible for the breach of confidentiality by their unauthorised distribution of the photos?'

The Defendant admitted that he sent photos to Kasi and it is clear on the evidence that that he had no authorization from the Claimant to do so. The messages in evidence strongly suggest that the Defendant may have also shown or sent the photographs to other persons in addition to Kasi. The Court found as a fact that it was the Defendant who first breached the confidentiality by distributing/sending the photographs to Kasi without obtaining the Claimant's consent. The Court also found as a fact that the Defendant's actions were motivated by a desire to cause the Claimant upset, embarrassment and distress. In the circumstances therefore the Claimant is entitled to relief.

It is unfortunate that as a society we have not been proactive and that we are burdened with so many archaic laws that predate our independence. The impact of social media and its consequent effect on our individual and collective privacy has to be acknowledged and addressed. There is a tendency for persons to hide behind the perceived anonymity that comes from using a 'username' and/or a user profile while sitting behind a computer screen or when using a hand held device to engage in offensive, hurtful, divisive and destructive discourse. These persons may feel that they are empowered but their actions can infringe upon the rights of others with the aggrieved persons having no recourse.

Online conversations and the dissemination of information over the internet initiate an open ended forum. The internet is a comprehensive and cohesive data base and there is really no anonymity in relation to the use of same. Photographs uploaded unto the internet can be retrieved forever. The impact upon an individual's privacy is tremendous and the absence of clear and cohesive legislation to protect our citizens' privacy and to punish those who violate the rights of others, can cause us to descend into a bottomless pit of anarchy. The use of obscene language in a public place is an offence, yet, online comments to newspaper articles and messages posted on social media are very often foul, racist and despicable but no criminal charges are preferred since evidential challenges arise in relation to the authorship of the offending material. A similar challenge exists in relation to the posting of online defamatory statements. Deeming legislative provisions that create a rebuttable presumption of ownership and responsibility for material posted on one's social media page, facebook account or from an individual's email address should therefore be considered. The time for legislative intervention is long overdue.

The judge also noted: “While it may be difficult for some to comprehend, it appears that it is not uncommon for couples in a sexual relationship to share intimate images with each other using their mobile phones during their relationship. This practice has introduced a relatively new verb- 'sexting' – to the English language and the dissemination of graphic sexual material after relations end has been coined as 'Revenge Porn”. Technological advances have dramatically increased the ease and speed with which such communication and/or sexually graphic images can be disseminated to the world and the process of capturing and disseminating an image to a broad audience can now take place over a matter of seconds by a few finger swipes.

The prudence of this contemporary practice of sharing intimate material which often involves sexual images, by electronic means should be weighed against the damage, distress and embarrassment which the broader dissemination of such material can cause. This reality must therefore inform the way in which equity responds to a breach of the obligation of confidence and has to be considered when determining the relief that should be awarded in response to a breach of that obligation.

There is a disturbing trend to immortalise almost every facet of daily life by taking photographs and uploading them unto social media sites. Such activity should also be cautiously reviewed, since the material that is posted may cause a serious compromise to the subject's personal security as profilers and deviants can predict movements and patterns of behaviours.

The behaviour of the Defendant cannot be condoned and demonstrated a flagrant disregard for the feelings, emotion and dignity of the Claimant with whom he shared sexual relations. The Court was alarmed by the manner in which the Defendant viewed the Claimant as an object and his statement as contained in the messages that “she was just a 'f--k' ” is unacceptable. The treatment of women as mere objects of pleasure is offensive, derogatory, antiquated, has no place in a civilised society and is indicative of the general lack of respect.

In this society women are often treated as second class citizens and as being inferior to their male counterparts but the reality is that they are excelling in all facets of national life and they are achieving greater academic success than many of their male counterparts. It is rather unfortunate that a young and talented cricketer like the Defendant behaved in such a manner. Upon the shoulders of those who hold positions of power, prestige and publicity there rests an onerous responsibility to adhere to the highest standards of moral and civilised conduct especially since the nation's children look towards them to set the standard of acceptable conduct. As a society we have to undertake a critical review, reprioritise and refocus. The objectification of women continues to be viewed as being culturally acceptable as is evident in our soca and chutney music. We must ask ourselves the question, "how are we to build a developed nation when we encourage and celebrate disrespect?" Respect for individuals regardless of gender, ethnicity, sexual orientation, for the law and for authority, must define the way we live and interact with each other.

On the evidence, the Court is convinced that the Defendant wanted to inflict mental and emotional harm to the Claimant. He felt that she had jeopardised his relationship with Kabrina and the familiar say 'Hell hath no fury as a woman's scorn” has to be adjusted in this case, as the evidence suggests that “Hell hath no fury as the Defendant's scorn.” The Claimant chose to engage in an unconventional relationship with the Defendant. The same moral obligation that she said caused her to inform Kabrina of her relations with the Defendant when their relationship ended, should have caused her to avoid the relationship with the Defendant in the first place. Individuals must take responsibility for their actions and they are charged with the primary responsibility of safe guarding themselves.