Social media. What a revolution. Not a day goes past, without just about every one of us being on it, in one form or another. It helps us keep in touch, find love, get work, be empathetic to one another. No end to the possibilities. But like every rose it has its thorns. And people are just starting to understand the implications of what it means when things go horribly wrong on social media, especially in terms of issues like privacy and public shaming. But a recent case in an Australian court has provided some sort of clarity on one issue relating to personal privacy. A West Australian woman was awarded almost $50,000 in compensation from an ex-boyfriend who posted sexually explicit videos and photos of her on Facebook. It was a significant legal ruling on the law of personal privacy. The case involved a woman called Caroline Wilson, a fly-in, fly-out worker at Fortescue Metals Cloudbreak mine in the Pilbara in outback Western Australia. Fly-in workers originate from other parts of Australia but they are attracted by the high wages and superior working conditions offered by mining companies desperate for skilled labor.
Wilson took her ex-boyfriend and former colleague Neil Ferguson to court after he posted 16 photos and two videos of her on his Facebook page. The court was told that Ferguson posted the sexually explicit material after Wilson ended their relationship via a text message, which judging by his subsequent behaviour, was the least that Ferguson deserved. In a series of expletive-laden text messages to Wilson, Ferguson said the photos were “out for everyone to see … Can’twait to watch you fold as a human being.”
What a charmer.
Wilson, became aware of the posts after being told by friends around 5.20pm on August 5, 2013. And they were subsequently deleted around 7pm after she begged Ferguson to remove them. Wilson’s lawyer, argued his client was entitled to an injunction under the law of breach of confidence to restrain Ferguson from re-posting the material, along with compensation for loss of wages, embarrassment and distress.
According to legal experts, there are very few Australian cases where a plaintiff, in a breach of confidence case, is entitled to compensation for emotional distress, as opposed to economic loss. The Australian Law Reform Commission (ALRC) released a report in June setting out elements of a potential civil action for serious invasions of privacy that would allow damages to be awarded for emotional distress. However, the Australian Government does not support the new law. The ALRC also said it was “desirable” for Parliament to “clarify the courts’ powers to award compensation for emotional distress” in breach of confidence cases.
What was really interesting about the case was what the judge said: “By posting the photographs and videos on his Facebook page, the defendant made them available to his approximately 300 ‘Facebook friends’, many of whom worked at Cloudbreak.”
The judge referred to a 2008 Victorian Court of Appeal decision, Giller v Procopets, in which a woman won compensation for emotional distress after her former partner distributed copies of sexually explicit videotapes of the couple. The judge said this was the only case he could find in which a superior court in Australia had grappled with the same issues. He also made the important observation that the events in the Giller v Procopets case took place in 1996, but technological advancements had “dramatically increased the ease and speed” of disseminating images and other material.
And that is an extremely important distinction. If anything, it makes the transgression far worse, than it might have been in the past, in terms of dissemination.
The judge ruled that Wilson was entitled to an injunction and $48,404 in compensation, including $35,000 for emotional distress and $13,404 for loss of wages while on leave. Ferguson was sacked from his job as a result of the incident. Quite frankly, it’s hard to feel any sympathy for him.
As you might expect, this case has the legal fraternity in a tizz. Associate Professor ,David Rolph, a media law expert at the University of Sydney Law School, said the case “indicates that breach of confidence might provide a remedy for addressing a lot of personal privacy concerns”. But he noted that applying existing causes of action to new situations that do not “ fit neatly” may distort the law and have unintended consequences. “My own view is that if privacy is a value that’s worth protecting it’s worth protecting directly and we should think about that in a broader, more comprehensive way,” he said.
A legal precedent has been established. The law has dealt fairly severely in a social media case of naming and shaming. Hopefully it will make potential future perpetrators think twice about indulging in similar behaviour. We can but hope.