Australian Court Awards $48,000 in Involuntary Porn Case

From the southern hemisphere comes a judgment against an Australian for $48,404 and injunctive relief in an involuntary (or “revenge”) porn case, Wilson v. Ferguson.

The facts should sound familiar for regular readers: the defendant, Neil Scott Ferguson, dated the plaintiff, a coworker, and photographs were mutually exchanged or taken with consent.  At some point, Ferguson took the plaintiff’s phone, which contained unshared video, and emailed the videos to himself.  When Ferguson told her about this, an argument ensued about his breach of her privacy and he agreed not to share the videos with anyone.  Ferguson also agreed not to share other photographs “to his friends or anything like that.”  The court also alludes to evidence that the plaintiff had an “understanding that there was a trust between the parties that the photographs would be private[.]”

As relationships often do, the couple took to arguing and the plaintiff ended her relationship with Ferguson.  That same day, Ferguson posted photographs and two explicit videos on Facebook, and a note reading “Let this b a fkn lesson.. I will shit on anyone that tries to fk me ova. That is all!”  The videos and photos remained online for less than two hours, when Ferguson, who expressed a desire to watch her “fold as a human being,” removed them after the plaintiff begged him to stop.

As the pair were employed at the same company, much of Ferguson’s audience consisted of the plaintiff’s coworkers.  Plaintiff took a leave of absence due to the embarrassment and was subsequently terminated.

Ferguson couldn’t make it to the trial date because of work obligations — an obstacle not likely faced by the plaintiff because she had lost her job due to Ferguson’s conduct.  So the court proceeded without him.

While the trial proceeded in absentia and the defendant wasn’t around to make his arguments, the court goes to great lengths to discuss the legal theories at issue, noting that the case “raised concerns about how an Australian court exercising equitable jurisdiction should respond to the publication by a jilted exlover, to a broad audience via the internet, of explicit images of a former partner which had been confidentially shared between the sexual partners during the course of their relationship.”

The court ruled that the plaintiff had demonstrated a “breach of confidence,” which permits a restraint on “the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.”  The analysis focuses on the requirement that the information was “communicated or obtained in circumstances importing an obligation of confidence[.]”

The court relied on two cases to determine that a relationship could give rise to such an expectation of confidence, even if the defendant were the person who took the photos.  The first was a case from 1888, in which a woman restrained a photographer from using negatives to reproduce her photo for an advertisement.  The second case involved a married couple, finding that the “intimate nature of a personal relationship between two people may give rise to a relationship of trust and confidence such that, without express statement to that effect, private and personal information passing between those people may in certain circumstances be imbued with an equitable obligation of confidence.”

But relationships inherently mean that two people share many experiences and ‘information.’  Could a disgruntled ex-lover seek judicial intervention when their former partner discusses mundane aspects of their relationship, or gripes to another about her former partner’s habits?  In other words, what information qualifies as ‘confidential’?  The court, “[r]ecognizing that no bright line could be drawn between what is private and what is not”, adopts a reasonable person standard, limiting relief to instances of “disclosure or observation of information or conduct [which] would be highly offensive to a reasonable person of ordinary sensibilities[.]”

The case, then, is simple:

The nature of the photographs and the circumstances in which they were obtained or provided were such as to make it obvious to any reasonable person standing in the shoes of the defendant that the images were for his viewing only and were not to be shared with any other person. Any disclosure of the images to third parties would be likely to cause immense embarrassment and distress to a person in the plaintiff’s position. The defendant appreciated this, and was in fact motivated by the embarrassment and distress which publication of the photographs would cause to the plaintiff.

Given that the photographs remained online for less than two hours, some back-of-the-envelope math suggests that it cost Ferguson $24,202 per hour, or $403 per minute, for the privilege of fleeting revenge.

(Thanks to Pat Gardner for the tip!)

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