The term ‘Revenge Porn’ is now a widely understood term but for those who do not understand what it is, it is the uploading to the internet of sexually explicit images of an individual without their consent, such images having been taken during the course of a relationship between the perpetrator and the victim.
Such conduct can lead to criminal prosecution but also a claim in damages in the civil Courts. Given that this is a relatively new phenomenon, there have been few prosecutions and no reported cases on assessment of damages in such circumstances, until now.
FGX v Gaunt [2023] EWHC 419 (KB) (27 February 2023)
Case background
In the first of its kind case of FGX v Gaunt (2023), Mrs Justice Thornton DBE had the unenviable task of assessing damages in such a case. The judge early in her judgment renamed ‘Revenge Porn’ as ‘Image Based Abuse’, which in the current case is much more appropriate given that the images/videos were taken whilst the victim was still in a relationship with the perpetrator. The judge said:
“The term ‘revenge porn’ is commonly used to describe the Defendant’s conduct but the term conveys the impression that a victim somehow deserved what happened to them. The description suggested by Counsel and used in this judgment, is image-based abuse.”
First dealing with the criminal aspect of this matter, Mr Gaunt was convicted of voyeurism and accordingly the victim’s identity must remain confidential.
The background to this matter is summarised by the judge as follows:
“8. The Claimant is 49-years-old. She moved to the UK in December 2015. She and the Defendant began a romantic relationship in March 2016 and she moved into his house in May of the same year.
- Around 16th October 2017, the Claimant found a microscopic camera concealed in the bathroom at home. Over the course of several days, she discovered that the Defendant had filmed her in three different ways.
- in the bathroom while she was naked and cleaning the bathroom before showering;
- while she was showering;
- while she slept topless.
- The Claimant further discovered the Defendant had uploaded the images onto a pornographic website, alongside a photograph of her face so she could be recognised. She located screenshots of payment platform websites, from which she inferred that the Defendant had made money from uploading the images…”
The Defendant did not actively defend the proceedings and so judgment was awarded in favour of the Claimant by default and the case about assessment of damages proceeded in the absence of the Defendant, who failed to turn up to the hearing notwithstanding him having been notified of the time and venue for the same several times.
The judge made the following findings of fact in respect of the impact that the Defendant’s conduct had on the Claimant:
“35. I make the following findings relevant to the assessment of general damages:
35.1. The Claimant and Defendant were in a personal and intimate relationship at the relevant time.
35.2. The images show the Claimant naked in the shower and bathroom and sleeping topless. They are intimate images, albeit not of sexual activity.
35.3. The relationship between the Claimant and Defendant did not involve any intimate image-based activity.
35.4. The images were uploaded onto a pornographic website accompanied by a photograph of the Claimant’s face, making her recognisable to anyone who knows her.
35.5. It is not known how many images were uploaded or the extent to which they have been replicated and downloaded. The expert assessment is that the likelihood of the images having being replicated elsewhere is high and it would be rare for there to be less than 20 images available to view.
35.6. The available evidence indicates the Defendant obtained payment for uploading the images
35.7. As a result of the Defendant’s conduct the Claimant suffers from chronic PTSD. She is one of a minority of cases in which PTSD becomes chronic over several years, causing an enduring personality change.
35.8. Separately, the Claimant has suffered a relapse of an existing mixed Anxiety and Depressive disorder, of which greater than 50% is attributable to the Defendant’s conduct.
35.9. The continued existence of the images online is a significant source of ongoing distress to the Claimant and a barrier to her recovery.
35.10. The Defendant’s conduct has had a serious impact on the Claimant’s private life and lifestyle. She has lost trust in people and become reclusive, to the extent of changing her job and refraining from personal relationships.”
It was acknowledged by the Court that there was no previous case relating to the assessment of damages in the current circumstances but the Court did take some guidance from cases involving sexual abuse and/or misuse of private information (such as information taken as a result of telephone hacking and also the sharing of information about sexual activity between two parties without one of the party’s consent).
Following a thorough analysis, the judge made the following award:
“58. Drawing the strands together, I award general damages of £60,000. This figure includes an award for aggravated damages. In assessing this sum, I have sought to reflect the situation up to and as at the date of judgment. I do not therefore consider a separate award of interest on this head of loss is appropriate…”
In addition, the Claimant was awarded special damages of £37,041.61 in respect of various items such a psychiatric treatment, cost of hotels associated with fleeing her home, belongings left behind, etc. Interestingly a claim for an account of profits made by the Defendant in respect of sums he was believed to have made from selling the content online. This head of claim was not proceeded with as, due to the Defendant having not taken part in the proceedings, there was insufficient evidence to pursue such a claim. It is therefore possible that this further head of claim could well give rise to substantial future awards, especially where the infringement involves a celebrity.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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