In this claim the par­ties were en­gaged in a sex­u­al re­la­tion­ship and dur­ing the course of same sev­er­al pho­tographs were tak­en by them, some of these pho­tographs de­pict­ed the Claimant nude and two of the pho­tographs de­pict­ed her en­gaged in fel­la­tio with the De­fen­dant (the pho­tos). Af­ter their re­la­tion­ship end­ed some of the pho­tos were al­leged­ly shown to oth­er per­sons and as a re­sult the Claimant in­sti­tut­ed the in­stant ac­tion and sought the fol­low­ing re­liefs:

An In­junc­tion re­strain­ing and/or pro­hibit­ing the De­fen­dant whether by him­self, his ser­vants and/or agents or oth­er­wise how­so­ev­er from dis­sem­i­nat­ing and/or dis­clos­ing and/or us­ing those con­fi­den­tial nude pho­tographs of the Claimant which the De­fen­dant has in his pos­ses­sion.

An In­junc­tion re­strain­ing and/or pro­hibit­ing the De­fen­dant whether by him­self, his ser­vants and/or agents from dis­sem­i­nat­ing/dis­clos­ing/post­ing/up­load­ing/pub­lish­ing and/or caus­ing to be fur­ther pub­lished/post­ed/up­loaded/dis­sem­i­nat­ed/dis­closed the said con­fi­den­tial nude pho­tographs and/or any fur­ther ma­te­r­i­al and/or any oth­er pho­tographs and/or videos of the Claimant whether by the in­ter­net/tele­phone/so­cial me­dia or how­so­ev­er oth­er­wise which im­ped­ed with the Claimant's pri­vate in­for­ma­tion and/or breach of her con­fi­dence.

An or­der that the De­fen­dant do de­liv­er up and/or de­stroy/dis­card all the pho­tographs and oth­er ma­te­ri­als he pos­sess­es of the Claimant.

Dam­ages for breach of con­fi­dence.

Ag­gra­vat­ed Dam­ages

An or­der that the at­tached nude pho­tographs of the Claimant be de­stroyed by the Reg­is­trar.

Costs

In­ter­est

Such fur­ther or oth­er re­lief as the Ho­n­ourable Court may think just in the cir­cum­stances.

At the tri­al, the par­ties were the on­ly wit­ness­es and their ev­i­dence is sum­marised as fol­lows:

The Claimant's case

The Claimant is a 24 year old moth­er of two and she stat­ed that she had a dat­ing re­la­tion­ship with the De­fen­dant which com­menced in March, 2013. At para­graph 8 of her wit­ness state­ment she tes­ti­fied that she took nude pho­tos of her­self and sent same via What­sApp to the De­fen­dant's phone for his pri­vate use when he was out of the coun­try. She tes­ti­fied that she was aware that the De­fen­dant was liv­ing with 'Kab­ri­na' who was the moth­er of his daugh­ter but she said the De­fen­dant told her that it was just an arrange­ment of con­ve­nience. Dur­ing the course of her in­volve­ment with the De­fen­dant, the Claimant said that she took pic­tures of her en­gaged in fel­la­tio with him. 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 the De­fen­dant. This dis­clo­sure, she said, was met by a vi­o­lent re­ac­tion from the De­fen­dant and she as­sert­ed that the De­fen­dant then dis­trib­uted the pho­tos to sev­er­al per­sons close to her in­clud­ing the fa­ther of her youngest daugh­ter (Kasi), her friends, as well as to some of his own friends. The pur­pose of this dis­clo­sure she says was to em­bar­rass and shame her.

An­nexed to her wit­ness state­ment were a se­ries of screen shots of mes­saged con­ver­sa­tions that she says she had with the De­fen­dant via their re­spec­tive cell phones over What­sApp and Viber as well as screen shots of mes­saged con­ver­sa­tions be­tween the De­fen­dant and two of her friends, Danielle and Aman­da (col­lec­tive­ly called 'the mes­sages'). The mes­sages formed part of her un­a­greed bun­dle of doc­u­ments and they were in­cor­po­rat­ed in­to her wit­ness state­ment. The Claimant's ev­i­dence was that notwith­stand­ing at­tempts by her and her friends to plead with the De­fen­dant for him not to dis­trib­ute the pho­tos, the De­fen­dant was in­tent on de­stroy­ing her and did so by dis­trib­ut­ing them. As a con­se­quence 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 Claimant al­so tes­ti­fied that as a fur­ther con­se­quence of the dis­tri­b­u­tion of the pho­tos she was al­so re­as­signed du­ties at work. Dur­ing the course of her cross ex­am­i­na­tion the au­then­tic­i­ty of the mes­sages which formed part of her ev­i­dence was not chal­lenged. The Claimant was al­so not chal­lenged in re­la­tion to the ef­fect, which she said, the dis­tri­b­u­tion of the pho­tos had on her.

The Court found that she was an im­pres­sive wit­ness. Her re­spons­es in cross ex­am­i­na­tion were con­sis­tent with her ev­i­dence in chief and were very di­rect. The Claimant there­fore en­gen­dered in the Court, an un­shak­able feel­ing that she was a wit­ness of truth.

The De­fen­dant's case

The De­fen­dant did not dis­pute that he had sex­u­al re­la­tions with the Claimant but he de­nied that they were "in a re­la­tion­ship". He 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 the Claimant had shown some of the pho­tos to Kab­ri­na.

At para­graph 4 of his wit­ness state­ment the De­fen­dant said that two of the pho­tos which de­pict­ed the act of fel­la­tio were tak­en at the Claimant's re­quest. The thrust of his de­fence was that it was the Claimant 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.

In cross ex­am­i­na­tion, the De­fen­dant said that he took the pho­tos de­pict­ing the act of fel­la­tio be­cause he did not trust the Claimant and want­ed to hold it over her head. This re­sponse was in di­rect con­tra­dic­tion to what he stat­ed at para­graph 4 of his wit­ness state­ment. He ac­cept­ed that mes­sages were in fact sent and ex­changed be­tween him­self, the Claimant and her friends Danielle and Aman­da and that the screen shots that were ex­hib­it­ed were ac­cu­rate­ly re­flect­ed. The Court not­ed that in the var­i­ous mes­sages, the De­fen­dant nev­er as­sert­ed that the Claimant had shown the pho­tos to Kab­ri­na, in fact he ac­cused her of hav­ing spo­ken to Kab­ri­na.

The Court was not im­pressed with this wit­ness, his re­spons­es were not di­rect and there were sub­stan­tial con­tra­dic­tions be­tween his ev­i­dence in chief and his re­spons­es in cross ex­am­i­na­tion.

The plead­ed case be­fore the Court was found­ed up­on the com­mon law con­cept of breach of con­fi­dence and the Court had to con­sid­er whether this con­cept could be ap­plied to the in­stant facts.

The Law

Breach of con­fi­dence

Ac­cord­ing to Gur­ry on Breach of Con­fi­dence: 'The Pro­tec­tion of Con­fi­den­tial In­for­ma­tion' 2nd Edi­tion (p. 107-108), the court ex­er­cis­es an eq­ui­table ju­ris­dic­tion in re­strain­ing a breach of con­fi­dence in­de­pen­dent of any right at law. This in­de­pen­dent eq­ui­table ju­ris­dic­tion, en­ables the court to grant re­lief in three sce­nar­ios with re­spect to con­fi­den­tial in­for­ma­tion where no rem­e­dy would nor­mal­ly be avail­able at law.

First­ly, where the par­ties to a con­fi­den­tial dis­clo­sure are not in a con­trac­tu­al re­la­tion­ship, eq­ui­ty pro­vides the on­ly ba­sis for the court's in­ter­ven­tion.

Sec­ond­ly, where a third par­ty re­ceives con­fi­den­tial in­for­ma­tion from a con­fi­dant in breach of the con­fi­dant's oblig­a­tion of con­fi­dence, eq­ui­ty will re­strain the third par­ty from mis­us­ing that in­for­ma­tion. Third­ly, eq­ui­ty may re­strain per­sons who have ac­quired con­fi­den­tial in­for­ma­tion in the ab­sence of a con­fi­den­tial re­la­tion­ship. This ap­plies to strangers who sur­rep­ti­tious­ly ac­quire in­for­ma­tion or who have ac­tu­al or con­struc­tive knowl­edge that the in­for­ma­tion which has come in­to their pos­ses­sion is con­fi­den­tial.

For a claim of breach of con­fi­dence to suc­ceed, the tra­di­tion­al re­quire­ments, as out­lined by Lord Greene MR in Salt­man En­gi­neer­ing Co. Ltd .v. Camp­bell En­gi­neer­ing Co Ltd (1948) 65 RPC 203 and Megar­ry J in Co­co .v. AN Clarke (En­gi­neers) Ltd [1969] RPC41, are as fol­lows:

The in­for­ma­tion must have had the nec­es­sary qual­i­ty of con­fi­dence, that is, it must not be some­thing which is pub­lic prop­er­ty and pub­lic knowl­edge.

There must have been an oblig­a­tion of con­fi­dence in the cir­cum­stances un­der which the in­for­ma­tion was im­part­ed.

There must have been an unau­tho­rised use of that in­for­ma­tion by the par­ty com­mu­ni­cat­ing it to the detri­ment of the con­fider.

In Mori­son .v. Moat 68 ER 492, the Court stat­ed that if a De­fen­dant is proved to have used con­fi­den­tial in­for­ma­tion, di­rect­ly or in­di­rect­ly ob­tained from a plain­tiff, with­out the con­sent, ex­press or im­plied of the plain­tiff, he will be guilty of an in­fringe­ment of the plain­tiff's rights.

In the case of Camp­bell .v. MGN [2004] 2AC457, Lord Nicholls de­scribed breach of con­fi­dence, in so far as it pro­tects con­fi­den­tial (as op­posed to pri­vate) in­for­ma­tion, as an eq­ui­table prin­ci­ple and Lord Walk­er in his dis­sent­ing speech ob­served that, 'where there is no con­trac­tu­al tie the cause of ac­tion is the eq­ui­table ju­ris­dic­tion to re­strain...breach of con­fi­dence'.

Tra­di­tion­al­ly a du­ty of con­fi­dence will be im­posed where con­fi­den­tial in­for­ma­tion is im­part­ed in cir­cum­stances where the con­fi­dant ei­ther has no­tice (ac­tu­al knowl­edge not be­ing es­sen­tial) that the in­for­ma­tion is con­fi­den­tial, or has agreed that such in­for­ma­tion is con­fi­den­tial, such as where there is ei­ther an ex­pressed or im­plied term in a con­tract. In such a sit­u­a­tion, the du­ty of con­fi­dence aris­es out of the na­ture of the re­la­tion­ship be­tween the con­fi­dant and the per­son to whom the in­for­ma­tion re­lates and the con­fi­dant should not take an un­fair ad­van­tage of such in­for­ma­tion, ei­ther through use by him­self or through dis­clo­sure of third par­ty.

Where how­ev­er there is no ob­vi­ous re­la­tion­ship be­tween the par­ties, an in­de­pen­dent du­ty of con­fi­dence will arise in eq­ui­ty, where the con­fi­den­tial in­for­ma­tion is di­vulged to a third par­ty by the per­son con­fid­ed in, or a con­fi­dant, or even where a third par­ty has come across the in­for­ma­tion ei­ther by sur­rep­ti­tious means or in­no­cent­ly.

The cir­cum­stances are sub­ject­ed to the rea­son­able man test, i.e whether a rea­son­able man stand­ing in the shoes of the re­cip­i­ent of the in­for­ma­tion would have re­alised that up­on rea­son­able grounds the in­for­ma­tion was be­ing giv­en to him in con­fi­dence.

Lord Hoff­man com­ment­ed obiter in the case of Camp­bell .v. Mir­ror Group News­pa­pers Lim­it­ed [2004] 2 AC 457 (HL) at para­graph 51

In­stead of the cause of ac­tion be­ing based up­on the du­ty of good faith ap­plic­a­ble to con­fi­den­tial per­son­al in­for­ma­tion and trade se­crets alike, it fo­cus­es up­on the pro­tec­tion of hu­man au­ton­o­my and dig­ni­ty–the right to con­trol the dis­sem­i­na­tion of in­for­ma­tion about one's pri­vate life and the right to the es­teem and re­spect of oth­er peo­ple".

The Courts have rec­og­nized that in­for­ma­tion, dis­sem­i­nat­ed be­tween in­di­vid­u­als who fall with­in the fol­low­ing cat­e­gories of per­son­al re­la­tions, may at­tract the cov­er of con­fi­den­tial­i­ty.

Hus­band and wife: In Duchess of Ar­gyll v. Duke of Ar­gyll (1967) 1 Ch 302 it was es­tab­lished that al­though not all in­for­ma­tion com­mu­ni­cat­ed with­in a mar­i­tal re­la­tion­ship at­tracts eq­ui­ty's pro­tec­tion, eq­ui­ty will be con­cerned with in­for­ma­tion re­lat­ing to the pri­vate life, per­son­al af­fairs or pri­vate con­duct com­mu­ni­cat­ed be­tween spous­es in con­fi­dence and in a cir­cum­stance the said in­for­ma­tion is not al­ready in the pub­lic do­main.

As be­tween un­mar­ried sex­u­al part­ners: Es­tab­lished in Stephens v. Av­ery (1988) Ch 449 at para­graph 454.

It ap­pears that the com­mon law con­cept of breach of con­fi­dence has nev­er been ap­plied in this ju­ris­dic­tion to deal with a cir­cum­stance where in­ti­mate pho­tographs tak­en in pri­vate have been dis­trib­uted with­out the con­sent of the oth­er par­ty.

The Aus­tralian case of Giller .v. Pro­copets [2004] VSC 113 bears some fac­tu­al sim­i­lar­i­ty with the case be­fore this Court. In that mat­ter the De­fen­dant who had pre­vi­ous­ly been in a de­fac­to re­la­tion­ship with the Claimant, sur­rep­ti­tious­ly took video record­ings of their sex­u­al ac­tiv­i­ties to­geth­er and showed these video­tapes to rel­a­tives and close friends of the Claimant. The Claimant sought dam­ages for, in­ter alia, breach of con­fi­dence and or in­va­sion of pri­va­cy. With re­gard to the claim for in­va­sion of pri­va­cy, Gillard J at first in­stance held that the law in Aus­tralia had not de­vel­oped to a point where a right of pri­va­cy ex­ist­ed. With re­gards to the claim of breach of con­fi­dence, his ho­n­our found that there was a con­fi­den­tial re­la­tion­ship be­tween the par­ties, which had been breached by the De­fen­dant's be­hav­iour in show­ing the video tapes to third par­ties. How­ev­er he held that the claimant could not re­cov­er dam­ages for men­tal dis­tress. On ap­peal, the Court of Ap­peal al­so re­fused to recog­nise the tort of pri­va­cy, but award­ed dam­ages for men­tal dis­tress caused by the breach of con­fi­dence.

Sim­i­lar­ly in the case of Wil­son v. Fer­gu­son (2015) WASC 15 the Supreme Court of West­ern Aus­tralia held that pic­tures tak­en and sent us­ing mo­bile phones were of the nec­es­sary qual­i­ty of con­fi­dence that there was a breach when the De­fen­dant post­ed the im­ages on his face­book page. Ac­cord­ing to Mitchell J. at para­graph 66

"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"

In Stephens v Av­ery (supra), Sir Nicholas Browne-Wilkin­son V.-C. was deal­ing with an ap­pli­ca­tion to strike out a state­ment of claim based up­on a claim for breach of con­fi­dence. The in­for­ma­tion re­lat­ed to sex­u­al con­duct of a les­bian na­ture be­tween the plain­tiff and an­oth­er and she re­vealed the de­tails to a per­son who in turn dis­closed them to the press. It was sub­mit­ted that sex­u­al con­duct, whether it be het­ero­sex­u­al or ho­mo­sex­u­al, lacks the qual­i­ty of con­fi­den­tial­i­ty be­cause by tak­ing part in the sex­u­al ac­tiv­i­ty both sex­u­al par­ties know what has hap­pened and ac­cord­ing­ly nei­ther can claim the in­for­ma­tion is con­fi­den­tial. In deal­ing with the ar­gu­ment His Lord­ship said -

"In my judg­ment this sub­mis­sion is whol­ly mis­con­ceived. It is based on the premise that as be­tween un­mar­ried sex­u­al part­ners there is no du­ty of con­fi­den­tial­i­ty. There­fore, both par­ties are free to dis­cuss the mat­ter with the whole world. I will as­sume that sub­mis­sion to be cor­rect but with­out ex­press­ing any view on its cor­rect­ness in law. Even on that as­sump­tion, the fact that the oth­er part­ner to a sex­u­al re­la­tion­ship may dis­close what has hap­pened does not mean that he or she has done so. To both peo­ple the de­tails of their sex­u­al lives are high on their list of those mat­ters which they re­gard as con­fi­den­tial. The mere fact that two peo­ple know a se­cret does not mean that it is not con­fi­den­tial. If in fact in­for­ma­tion is se­cret, then in my judg­ment is ca­pa­ble of be­ing kept se­cret by the im­po­si­tion of the du­ty of con­fi­dence on any per­son to whom it is com­mu­ni­cat­ed. In­for­ma­tion on­ly ceas­es to be ca­pa­ble of pro­tec­tion as con­fi­den­tial when it is in fact known to a sub­stan­tial num­ber of peo­ple."

His Lord­ship con­clud­ed -

"In prin­ci­ple, there­fore, I can see no rea­son why in­for­ma­tion re­lat­ing to that most pri­vate sec­tor of every­body's life, name­ly sex­u­al con­duct can­not be the sub­ject mat­ter of a legal­ly en­force­able du­ty of con­fi­den­tial­i­ty."

While it may ap­pear that an in­di­vid­ual's sex­u­al ex­ploits should be af­ford­ed some pro­tec­tion on ac­count of pri­va­cy, the law in this ju­ris­dic­tion has how­ev­er not de­vel­oped so as to rec­og­nize any such right.

Right to Pri­va­cy

In Wain­wright .v. Home Of­fice [2004] 2 AC406 the House of Lords held that there was no Eng­lish do­mes­tic law tort of in­va­sion of pri­va­cy and the Eng­lish court has not recog­nised a cause of ac­tion based up­on per­son­al pri­va­cy.

Gilbert Kodilinye in: Com­mon­wealth Caribbean Tort Law 5th Edi­tion at chap­ter 16 en­ti­tled: "The De­vel­op­ing Tort of Mis­use of Pri­vate In­for­ma­tion" at p.453-454 not­ed, that "the tra­di­tion­al el­e­ments of the law of con­fi­dence have been used as a spring­board for the de­vel­op­ment of what is now termed the tort of mis­use of pri­vate in­for­ma­tion, which may cov­er cir­cum­stances or sit­u­a­tions not cov­ered by the law of con­fi­dence, since it is more close­ly aligned with the right to pri­vate life found un­der Ar­ti­cle 8 of the ECHR and un­der con­sti­tu­tion­al fun­da­men­tal law prin­ci­ples. In sat­is­fy­ing the test for a suc­cess­ful claim in the tort of mis­use of pri­vate in­for­ma­tion, the ques­tion is whether a claimant has a rea­son­able ex­pec­ta­tion of pri­va­cy con­cern­ing the in­for­ma­tion dis­closed or about to be dis­closed."

Ac­cord­ing to Kodilinye, there is no de­vel­oped ju­ris­dic­tion of the tort of mis­use of pri­vate in­for­ma­tion in the Caribbean. He not­ed that while the fun­da­men­tal pro­vi­sions of some con­sti­tu­tions al­low for some mea­sure of con­sti­tu­tion­al pro­tec­tion of pri­va­cy, this rem­e­dy is on­ly avail­able in ac­tions against the state and are not avail­able against pri­vate cit­i­zens.

In this ju­ris­dic­tion there­fore 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.

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's ev­i­dence that the Claimant was the one who first dis­trib­uted the pho­tos is re­ject­ed by this Court for the fol­low­ing rea­sons:

First­ly the mes­sages do not sup­port this as­ser­tion. In the course of the var­i­ous con­ver­sa­tions, the De­fen­dant nev­er ac­cused the Claimant of the dis­tri­b­u­tion of any of the pho­tos. In fact, the mes­sages re­veal that pleas were ad­vanced by the Claimant and her friends be­seech­ing the De­fen­dant not to dis­trib­ute any of the pho­tos.

Sec­ond­ly, the De­fen­dant is now mar­ried to Kab­ri­na but she was not called as a wit­ness, though she is res­i­dent in this ju­ris­dic­tion and she is not ill. Kab­ri­na's ev­i­dence could have as­sist­ed the Court in its res­o­lu­tion of this is­sue as the De­fen­dant con­tend­ed, that the Claimant showed the pho­tos to her be­fore he showed them to Kasi.

Third­ly, the Court found the Claimant's ver­sion of events was more plau­si­ble and prob­a­ble than the po­si­tion pos­tured by the De­fen­dant.

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.

Hav­ing found that there was a breach of con­fi­den­tial­i­ty and that the Claimant is en­ti­tled to re­lief the Court must now ad­dress its mind as to the na­ture of the re­lief that should be af­ford­ed to the Claimant

Re­liefs avail­able to the Claimant

The Court in its in­her­ent ju­ris­dic­tion can grant re­lief and award eq­ui­table com­pen­sa­tion in ad­di­tion to in­junc­tive re­lief. The courts in New Zealand and Aus­tralia have with reg­u­lar­i­ty treat­ed eq­ui­table com­pen­sa­tion as the ba­sis of any award for breach of con­fi­dence. In this case there is no ev­i­dence of ac­tu­al fi­nan­cial loss or of phys­i­cal in­jury, how­ev­er in her ev­i­dence the Claimant said that she suf­fered emo­tion­al and men­tal dis­tress and that she was sub­ject­ed to pub­lic ridicule. Her ev­i­dence, on these mat­ters was not chal­lenged.

In Cor­nelius v. De Taran­to (2001) EMLR 12 at pages 66-67 and 69, Mor­land J said: ...[I]t would be a hol­low pro­tec­tion of [the right to pro­tec­tion of con­fi­den­tial in­for­ma­tion] if in a par­tic­u­lar case in breach of con­fi­dence with­out con­sent de­tails of the con­fider's pri­vate and fam­i­ly life were dis­closed by the con­fi­dant to oth­ers and the on­ly rem­e­dy that the law of Eng­land al­lowed was nom­i­nal dam­ages. In this case an in­junc­tion or or­der for de­liv­ery up of all copies of the medico-le­gal re­port against the de­fen­dant will be of lit­tle use to the claimant. The dam­age has been done. ... In cas­es of com­mer­cial or busi­ness breach of con­fi­dence the pow­ers of the court are not bar­ren. Such reme­dies as in­junc­tion, de­liv­ery-up, ac­count of prof­its and dam­ages may be avail­able... sim­i­lar­ly in the case of per­son­al con­fi­dences ex­ploit­ed for prof­it or ped­dled to the me­dia. ... In the present case in my judg­ment re­cov­ery of dam­ages for men­tal dis­tress caused by breach of con­fi­dence, when no oth­er sub­stan­tial rem­e­dy is avail­able, would not be in­im­i­cal to con­sid­er­a­tions of pol­i­cy but in­deed to refuse such re­cov­ery would il­lus­trate that some­thing was wrong with the law.

This Court en­dors­es and adopts the afore­men­tioned view by Mor­land J. as well as the po­si­tion adopt­ed by the Ap­peal Court in Giller v. Pro­copets (supra). Eq­ui­table ju­rispru­dence must be char­ac­terised by a mea­sure of re­me­di­al flex­i­bil­i­ty. In Giller v. Pro­copets (supra), the ap­pel­late court found that mon­e­tary com­pen­sa­tion for emo­tion­al dis­tress could be award­ed both in the ex­er­cise of the Court's eq­ui­table ju­ris­dic­tion and un­der the Vic­to­ri­an ver­sion of Lord Cairns' Act which was cast in ma­te­ri­al­ly sim­i­lar terms to s25(10) of the Supreme Court Act 1935 (WA). While there is no equiv­a­lent of the Lord Cairn's Act in this ju­ris­dic­tion, the rea­son­ing which was based on the in­her­ent eq­ui­table ju­ris­dic­tion to award com­pen­sa­tion for breach of an eq­ui­table oblig­a­tion can be fol­lowed.

The po­si­tion pos­tu­lat­ed in Giller v. Pro­copets is con­sis­tent with the way in which the law has de­vel­oped in the Unit­ed King­dom, al­beit un­der the in­flu­ence of the Hu­man Rights Act 1998 (UK) and ju­rispru­dence of the Eu­ro­pean Court of Hu­man Rights.

Even as at late 1996 when Giller v. Pro­copets was de­cid­ed, it would have been dif­fi­cult to pre­dict the dra­mat­ic ef­fect that the in­ter­net and so­cial me­dia now has on the glob­al com­mu­ni­ty. This per­va­sive­ness is re­flect­ed in the way the Claimant and De­fen­dant here­in com­mu­ni­cat­ed with each oth­er, of­ten by elec­tron­ic com­mu­ni­ca­tion. 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.

Un­der the com­mon law, ag­gra­vat­ed dam­ages can al­so be award­ed to com­pen­sate a lit­i­gant when the harm oc­ca­sioned by the wrong­ful act has been ag­gra­vat­ed by the man­ner in which the act was done. There is on the facts of this case a dis­tinct el­e­ment of ag­gra­va­tion and the De­fen­dant demon­strat­ed a clear and un­shak­able de­ter­mi­na­tion to make the Claimant pay and to ex­pose her in the lit­er­al sense of the word. The De­fen­dant's con­duct was un­ac­cept­able and the Court found as a fact that sig­nif­i­cant dis­tress and em­bar­rass­ment was in­flict­ed up­on the Claimant. This Court is of the view that the breach of con­fi­dence was oc­ca­sioned with the de­lib­er­ate in­tent of caus­ing em­bar­rass­ment, dis­tress and hu­mil­i­a­tion to the Claimant and it is there­fore nec­es­sary to in­clude in the award of com­pen­sa­tion an ap­pro­pri­ate quan­tum for ag­gra­va­tion.

In Giller (supra) the Court of Ap­peal award­ed the sum of $40,000.00 in­clud­ing the sum of $10,000.00 in ag­gra­vat­ed dam­ages. This Court is of the opin­ion that the sum of $150,000.00 should be award­ed as com­pen­sa­tion to the Claimant and this said sum is in­clu­sive of the sum of $60,000.00 which is award­ed on ac­count of ag­gra­vat­ed dam­ages.

In the cir­cum­stances the or­der of the Court is as fol­lows:

The De­fen­dant is to pay to the Claimant the sum of $150,000.00 in­clu­sive of an award for ag­gra­vat­ed dam­ages.

A per­pet­u­al in­junc­tion is here­by is­sued so as to re­strain and/or pro­hib­it the De­fen­dant his ser­vants and/or agents from dis­sem­i­nat­ing, up­load­ing, post­ing and/or pub­lish­ing nude and/or sex­u­al­ly ex­plic­it pho­tographs of the Claimant and/or pho­tographs that de­pict her per­form­ing the act of fel­la­tio whether by way of the in­ter­net, cel­lu­lar phone or any oth­er form of so­cial me­dia or by any oth­er means what­so­ev­er.

It is here­by or­dered that all the pho­tographs ex­hib­it­ed in this mat­ter should be place in a sealed en­ve­lope un­til the time lim­it­ed for the fil­ing of an ap­peal, up­on ex­pi­ra­tion of same, if no ap­peal has been filed, the pho­tographs are to be de­stroyed by the Reg­is­trar. If an ap­peal is filed the pho­tographs shall re­main sealed un­til any fur­ther or­der is is­sued by the ap­pel­late court.

The De­fen­dant is to pay to the Claimant costs cal­cu­lat­ed on a pre­scribed cost ba­sis.

There shall be a stay of ex­e­cu­tion of the pay­ment of the award­ed sum of $150,000.00 and the costs award­ed of 14 days.

FRANK SEEP­ER­SAD