Posting sexually explicit images on social media can be costly

A man who posted sexually explicit images and videos of his ex-girlfriend on Facebook has been forced to pay her almost $50,000 for the distress and embarrassment caused.

The case, heard in the ‘Supreme Court of Western Australia in December 2014, is a major ruling in privacy law and the first of its kind in more than six years where compensation has been awarded for a breach of confidence that lead to emotional distress.

Ms Caroline Wilson ended her relationship with former work colleague Mr Neil Ferguson soon after allegedly discovering that Mr Ferguson was cheating on her. In an act of revenge, he posted 16 sexually explicit photos and two videos of Ms Wilson on his Facebook page. These were able to be viewed by around 300 Facebook ‘friends’, many of whom worked at the same company as Ms Wilson.

Mr Ferguson posted the following comments alongside the video recordings and photographs:

“… out for everyone to see… Can’t wait to watch you fold as a human being … Happy to help all ya boys at home .. enjoy!!” and “Let this b a f…… lesson … I will shit on anyone that tries to f… me ova. That is all!”

Ms Wilson was allegedly unaware of Mr Ferguson’s postings until she began to receive a wave of calls from concerned friends late on the day that he posted the content (5 August 2013). She said she sent Mr Ferguson “texts” begging him to take the images off the site. Mr Ferguson then removed the photographs and videos from Facebook at about 7pm on the same day, but the damage had been done. According to her statement, his actions were intended to inflict mental harm, distress, humiliation, loss of self-esteem and embarrassment as a result of her decision to break up with him.

Ms Wilson commenced legal proceedings against Mr Ferguson to restrain the defendant from further publication of the sex tapes and photographs and to seek damages and costs.

The hearing

Mr Ferguson, whose employment had been terminated after the Facebook scandal, chose not to attend the hearing.

At the hearing, Ms Wilson’s evidence was found to be “honest and forthright”. The crux of the claim was that there had been a breach of confidence. The videos and photographs taken by Mr Ferguson were for the exclusive enjoyment and gratification of Ms Wilson and Mr Ferguson, but only for so long as their relationship lasted.

Ms Wilson alleged that, by virtue of their relationship ending and particularly given the circumstances of the break-up, the pair owed each other a duty of confidence not to distribute or disclose the photographs and videos. Mr Ferguson denied those allegations.

The verdict

The Judge agreed with Ms Wilson stating:

“The conduct of the defendant in posting the photographs and videos of the plaintiff to his Facebook page, from which they were accessible to a large number of people including employees at the plaintiff’s workplace, involved a breach of his equitable obligation, owed to the plaintiff, to maintain the confidentiality of the images.”

Ms Wilson was awarded compensation, costs and an injunction restraining Mr Ferguson from either directly or indirectly publishing, in any form, any photographs or videos of Ms Wilson engaging in sexual activities or where she appears naked or partially naked.

Lessons learned

Breaches of confidence in the realm of social media is a relatively new legal phenomenon and everyone using social media needs to carefully consider the legal ramifications of every message or image posted.

The advancement in technology and the widespread availability/accessibility of smart phones has significantly reduced the time to publish and broadcast “media” to the masses – from days to seconds. Sex tapes, ‘sexting’ and ‘sexbook’ messages taken in the “heat of the moment”, be it lust, anger or revenge, takes seconds, but the emotional damage caused is lasting. Our personal moments are no longer for our eyes only, but are often stored on smartphones, computers and on the cloud. The need to record and share these private moments carries the inherent risk that it will no longer be private, which is something we must all think carefully about.

Streeterlaw has extensive experience in cases where fraud, blackmail, intimidation and breaches of confidence have occurred. If there is a dispute you need to resolve quickly, please contact us on 02 8197 0105 or email advice@streeterlaw.com.au

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!