In the world beyond bloopers and practical jokes, the internet and technology has opened up a range of opportunities for the publication of films and other material. Lawyers are seeing a steady procession of clients seeking advice on defamatory blogs, websites and Facebook pages. In our family law department the fact situations are even more bizarre with spouses using spyware to track their partner’s activities on line; car trackers and various recording devices with the material then receiving a full airing in the Family Court.
In a first for Western Australia, on 16 January 2015, the Supreme Court dealt with a matter where the Defendant, described as a “jilted lover”, published pornographic photos and videos of the Plaintiff on his Facebook page. These images became available to the Defendant’s 300 Facebook “friends”. The images had been provided consensually by the Plaintiff but not with the intention that they be published.
The Defendant made no secret of the fact that he had published the material. He sent a text to the Plaintiff saying “….photos will b out for everyone to see when I get back you slappa. Can’t wait to watch u fold as a human being”.
The photographs and videos were only on line for a matter of hours but in the meantime were readily available for downloading and therefore, potentially, liable to further electronic distribution.
The Defendant filed a Defence which made no admissions or denials but he did not appear at the trial.
The trial Judge, Mitchell J, carefully reviewed the law and concluded that the Court could restrain the use and publication of private information. He issued an injunction preventing publication of the photographs and videos.
The Plaintiff also sought compensation but could this be awarded purely for embarrassment and hurt feelings? Relying on an earlier Victorian case, Giller v Procopets, the Judge decided that he could award compensation. The Giller case involved pornographic video tapes which had been distributed to the victim’s family.
Mitchell J. awarded $35,000 for the Plaintiff’s distress and embarrassment and $13,404 for economic loss plus legal costs. The case had serious consequences for the Defendant who lost his job and was required to pay significant damages and costs.
The legal lesson of this case is that the Courts can and will award damages for the publication of material intended to be private.