Digital Rights, Intermediary Liability, Safety, Privacy Violations, Adult Sexual Exploitation
Mrs X v. Union of India
Closed Mixed Outcome
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The High Court of Justice Kings’ Bench Division found that the claimant was entitled to general and special damages relating to the dissemination of non-consensual pornography. After the claimant discovered naked images of her had been published on a pornographic website, alongside a photograph of her face, the claimant sought damages for nine heads of loss which included pain, suffering, and loss of amenities, treatment costs, future treatment costs, and the cost of removing images from the internet. The court ruled that the claimant was entitled to general and special damages since the defendant’s conduct had a serious impact on the claimant’s private life and lifestyle as she had lost trust in people and became reclusive, to the extent of changing her job and refraining from personal relationships; she suffered from mixed anxiety and depressive disorder and also post-traumatic stress disorder. The Court likened the violation of her personal dignity and autonomy to that of sexual assault, even though the harm was from images rather than physical violence. The court awarded general damages of £60,000 and special damages of £37,041.61 for consequential financial losses, making a total of £97,041.61.
The claimant is a 49-year-old woman who moved to the UK in December 2015 and began a romantic relationship with the defendant in March 2016 and moved into his house in May 2016 [p. 8].
In October 2017, the claimant discovered a microscopic camera concealed in the bathroom at home which was being used by the defendant to record her in three different ways: in the bathroom, while she was naked and cleaning the bathroom before showering; while she was showering; and while she slept topless [p. 9]. Furthermore, the claimant’s images were uploaded to a pornographic website alongside a photograph of her face for monetary payment [p. 10]. This caused the claimant to suffer from chronic post-traumatic stress disorder, leading to an enduring personality change [p. 1].
In September 2020, the defendant was convicted of voyeurism and other sexual offences under the Sexual Offences (Amendment) Act 1992. He received a two-year suspended sentence and was ordered to sign the Sex Offenders Register for ten years [p. 11].
In December 2020, the claimant also filed for damages, the particulars of which include: intentionally exposing the claimant to a foreseeable risk of injury or severe distress which resulted in injury; infringement of the claimant’s privacy; and the breach of the claimant’s confidence (misuse of private information) [p. 4].
The claimant contended that the defendant owed her an obligation of trust and confidence in relation to intimate/personal information coming into his possession as a result of their relationship. The images of the claimant constituted confidential and private information, and she had a reasonable expectation that her time at the defendant’s home would remain confidential due to the intimate nature of the relationship. Therefore, the claimant argued that the distribution of these images constituted a breach of his obligations of trust and confidence owed to her [p. 13].
Justice Thornton DBE of the High Court of Justice Kings’ Bench Division delivered the judgment. The court was responsible for assessing the damages, in this case, arising from the recording of naked images of the claimant and their subsequent publication on a pornographic website, alongside a photograph of the claimant’s face [p. 1]. The claimant had sought damages for nine heads of loss which included pain, suffering, and loss of amenities, treatment costs, future treatment costs, and the cost of removing images from the internet [p. 17].
Firstly, the court ruled that the claimant was entitled to general and special damages since the defendant’s conduct had a serious impact on the claimant’s private life and lifestyle as she had lost trust in people and became reclusive, to the extent of changing her job and refraining from personal relationships; she suffered from mixed anxiety, depressive disorder, and post-traumatic stress disorder [p. 35].
Secondly, for the determination of the quantum of monetary award for general damages, the court considered precedents established in ABC v. Willock, MGN v. Representative Claimants, Reid v. Price, and Bull v. Desporte. In ABC, the claimant, a 16-year-old pupil at a special needs school, claimed damages for sexual abuse inflicted by the Vice Principal of the school. The court awarded £25,000 (£31,790 in today’s figures) emphasizing the breach of trust given the age and vulnerability of the claimant [p. 38]. In MGN, guidelines were laid down in claims for misuse of information arising out of phone hacking and it was ruled that the appropriate compensation will depend on the nature of the information; its significance as private information, and the effect on the victim of its disclosure [p. 39]. In Reid, video recordings and/or photographs obtained by the defendant during the course of the relationship were disclosed to a number of people which showed the claimant dressed as his cross-dressing alter-ego and engaging in sexual activity. The judge considered that the claim merited an award of at least £25,000 [p. 40]. In Bell, a claim was filed for misuse of private information and copyright infringement [p. 41].
Applying the guidance in MGN, the court treated the naked images of the claimant as private information of significance. The judge observed that the likelihood of replication of the claimant’s private images was high and once downloaded, the images would remain available for viewing even if the claimant got the content removed. On this basis, the court applied the MGN principle that the effect of repeated intrusions by publication could be cumulative and therefore, the impact was profound which also led to the development of chronic PTSD and an enduring personality change in the claimant [p. 43].
The court distinguished the instant case from the Reid case by stating that the figure of £25,000, in that case, did not include an award for a medical diagnosis of psychological harm, which was a feature of the present case, add therefore, £25,000 was treated as a floor, not a ceiling. Further, according to the judge, the claimant in Reid had to endure a degree of public interest not present here because he and the defendant were public figures however, in the present case, the claimant had not sought to put herself into public life in any way and her diagnosis of chronic PTSD was based, in part, on her continuing pre-occupation with the images being available to the public [p. 45].
The court remarked that the “consequent degradation and humiliation for the claimant considerably heightens the violation of her personal dignity and autonomy resulting from the misuse of her information” and therefore, “the impacts on the claimant are akin to the impacts of sexual assault listed in the Judicial College guidelines, albeit that the abuse in the present case is image-based rather than physical”. By taking this into account, the court considered the Judicial College awards for psychiatric and psychological damage consequent on sexual abuse, which ranged from £20,570- £45,000 [p. 49].
The court noted that the impacts of the abuse had manifested themselves in a diagnosis of chronic PTSD with an enduring personality change and the consequent impact on her private life and lifestyle, she became reclusive, to the extent of changing her job so she worked from home and refrained from personal relationships [p. 50]. Since the claimant was one of a minority of people for whom PTSD becomes chronic, the court decided to award more monetary damage as “those with a thin skin may be caused more distress (and receive more compensation) than those with a thick skin” [p. 51].
Furthermore, the court considered the Judicial College awards for PTSD wherein the awards ranged between £59,860 – £100,670 for severe and £23,150 to £59,860 for moderately severe, as to which the majority of awards fell between £28,760 – £37,120 [p. 52]. The court also referred to PTSD awards in Kemp and Kemp Quantum of Damages and Re TP (Vol 3 C2-002) which concerned a diagnosis of chronic PTSD with an enduring personality change after the rape and £93,000 (in today’s figures) was awarded for pain suffering and loss of amenity [p. 54]. The court also referred to ABC v Willock wherein £31,970 (in today’s figures) was awarded for the intentional infliction of injury, by way of sexual texting and the sending of indecent images.
The court held that although “the breach of trust in Willock may be said to be more serious (a highly vulnerable 16-year-old and a perpetrator 39 years her senior and a senior member of the school). However, the psychological impact is more severe in the present case. In addition, the misuse of the information in the present case is considerably more serious. The claimant in Willock had generated the images herself, with encouragement. There was no publication of the images. The claimant, in this case, was not even aware that the images had been generated and the images were published on a pornographic site, alongside a photo of her face” [p. 54].
The court also awarded damages to compensate the claimant for additional distress arising from aggravating features of the defendant’s conduct which included the needless uploading of a photograph of the claimant’s face onto the pornographic website, and the defendant’s failure to participate in these proceedings.
Drawing all the strands together, the court awarded general damages of £60,000 which included an award for aggravated damages. The court also awarded the cost of hotel, furniture, and wasted holiday given the claimant’s unplanned departure from the defendant’s house [p. 60-61]; past treatment costs for psychiatric treatment from a consultant psychiatrist, therapy from a clinical therapist, dentistry to repair teeth damaged by the Claimant grinding her teeth at night and prescriptions [p. 63]; cost of removing the images from the internet [p. 69]; and future treatment costs in case further relapse of the claimant [p. 70-71].
To conclude, the court awarded £60,000 for pain, suffering, and loss of amenity caused to the claimant, and £37,041.61 for special damages which collectively amounted to £97,041.61 [p. 74].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In the instant case, the court weighed in favor of protecting the right to privacy of the claimant whose images were captured and uploaded on the pornographic website without her consent. The Court further likened the harm caused by the dissemination of non-consensual pornography to “the impacts of sexual assault… albeit that the abuse in the present case is image-based rather than physical”.
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