Derek Achong

The Court of Ap­peal has raised the pos­si­bil­i­ty that cit­i­zens could even­tu­al­ly pur­sue law­suits against oth­er in­di­vid­u­als for breach­es of pri­va­cy, even as it ruled that such claims are not cur­rent­ly recog­nised un­der Trinidad and To­ba­go law.

Ap­pel­late Judges Mark Mo­hammed, Maria Wil­son and James Aboud ad­dressed the is­sue while hear­ing an ap­peal by two teenagers who were dis­cov­ered locked in a toi­let at a shop­ping mall in Bar­rack­pore be­fore school and con­front­ed by the prop­er­ty own­er, Kr­ishen Bas­deo.

The pan­el ruled that a High Court judge had been wrong to dis­miss as­pects of the teenagers’ claims in­volv­ing false im­pris­on­ment and bat­tery. How­ev­er, the judges found that the teenagers could not pur­sue a tort claim for breach of pri­va­cy.

Writ­ing the judg­ment, Jus­tice Wil­son ex­plained that cit­i­zens can cur­rent­ly ex­er­cise their con­sti­tu­tion­al right to pri­va­cy on­ly against the State or its agents, not against oth­er pri­vate in­di­vid­u­als.

She said the teens’ at­tor­ney, Lee Mer­ry, pre­sent­ed com­pelling ar­gu­ments urg­ing the courts to recog­nise pri­va­cy claims be­tween cit­i­zens, par­tic­u­lar­ly in light of tech­no­log­i­cal ad­vances and the rapid spread of in­for­ma­tion on­line.

“We can­not sim­ply ig­nore this new ecosys­tem,” Wil­son said.

“In­stead, it ought to com­pel Par­lia­ment and/or our courts, most like­ly the lat­ter, to con­sid­er se­ri­ous­ly the recog­ni­tion of the law of right to pri­va­cy be­tween in­di­vid­u­als in or­der to en­sure that in­di­vid­u­als have an avail­able rem­e­dy for in­fringe­ment of their rights by oth­er in­di­vid­u­als,” she added.

De­spite that ob­ser­va­tion, Wil­son said the case was not suit­able for such a de­vel­op­ment be­cause the teenagers did not have per­mis­sion from the land­lord or a ten­ant to use the toi­let.

“The sit­u­a­tion would have been very dif­fer­ent if they had the per­mis­sion of the seam­stress to be in the toi­let,” she said.

“It is no dif­fer­ent from an in­trud­er en­ter­ing one’s back­yard and claim­ing that they have a right to pri­va­cy if you take their pho­to.”

The case arose from an Oc­to­ber 2018 in­ci­dent when Bas­deo al­leged­ly found the teens locked in the toi­let and a man who ac­com­pa­nied him record­ed them while they were ques­tioned. The record­ing lat­er cir­cu­lat­ed on so­cial me­dia.

The moth­ers of the 17-year-old male and 15-year-old fe­male stu­dents filed the law­suit af­ter the video spread on­line.

In 2020, High Court judge Frank Seep­er­sad re­ject­ed their ex­pla­na­tion that the boy had been help­ing the girl, who al­leged­ly felt ill due to her men­stru­al cy­cle.

“I found the ev­i­dence of both Claimants to lack cred­i­bil­i­ty and I find that it was more plau­si­ble to con­clude on a bal­ance of prob­a­bil­i­ties that these two young peo­ple were en­gaged in a ro­man­tic tryst in the bath­room,” Seep­er­sad said.

“Clear­ly these young peo­ple were young and rest­less and were pur­su­ing their ro­man­tic en­deav­ours in a pub­lic en­vi­ron­ment in a pri­vate bath­room.”

How­ev­er, the Court of Ap­peal ruled there was no ev­i­dence that the teenagers were en­gaged in sex­u­al ac­tiv­i­ty.

While the judges ac­cept­ed that the pair were tres­pass­ing, Wil­son ruled that Bas­deo did not have the au­thor­i­ty un­der the Tres­pass Act to de­tain them. She al­so found that he com­mit­ted bat­tery against the male stu­dent by push­ing him as he tried to leave.

The court or­dered Bas­deo to pay $30,000 in com­pen­sa­tion to the male stu­dent and $25,000 to the fe­male stu­dent.

Jus­tice Aboud de­liv­ered a dis­sent­ing opin­ion, sug­gest­ing that the com­pen­sa­tion should have been high­er be­cause the con­fronta­tion in­volved mi­nors.

“The mi­nors were vul­ner­a­ble, in a po­si­tion of weak­ness, and sub­servient to his ag­gres­sive be­hav­ior and vul­gar­i­ties,” Aboud said.

The teenagers were al­so rep­re­sent­ed by at­tor­ney Vani­ta Ram­roop, while Che Din­di­al ap­peared for Bas­deo.