Ho v Simmons
| Jurisdiction | Trinidad & Tobago |
| Judge | Seepersad, J. |
| Judgment Date | 26 October 2015 |
| Neutral Citation | TT 2015 HC 312 |
| Docket Number | CV 1949 of 2014 |
| Court | High Court (Trinidad and Tobago) |
| Date | 26 October 2015 |
High Court
Seepersad, J.
CV 1949 of 2014
1. Mr. L. Murphy instructed by Mr. N. Maraj and Mr. C. Chandler for the claimant
2. Mr. K. Wright instructed by Ms. P. Beckles for the defendant
Breach of Confidence - Intimate photos taken in private distributed without the consent of the other party - Right to privacy.
Damages - Aggravated damages.
Seepersad, J. In this claim the parties were engaged in a sexual relationship and during the course of same several photographs were taken by them, some of these photographs depicted the claimant nude and two of the photographs depicted her engaged in fellatio with the defendant (the photos). After their relationship ended some of the photos were allegedly shown to other persons and as a result the claimant instituted the instant action and sought the following reliefs:
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a. An Injunction restraining and/or prohibiting the defendant whether by himself, his servants and/or agents or otherwise howsoever from disseminating and/or disclosing and/or using those confidential nude photographs of the claimant which the defendant has in his possession.
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b. An Injunction restraining and/or prohibiting the defendant whether by himself, his servants and/or agents from disseminating/disclosing/posting/uploading/ publishing and/or causing to be further published/posted/uploaded/disseminated/ disclosed the said confidential nude photographs and/or any further material and/or any other photographs and/or videos of the claimant whether by the internet/telephone/social media or howsoever otherwise which impeded with the claimant's private information and/or breach of her confidence.
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c. An order that the defendant do deliver up and/or destroy/discard all the photographs and other materials he possesses of the claimant.
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d. Damages for breach of confidence.
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e. Aggravated Damages
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f. An order that the attached nude photographs of the claimant be destroyed by the Registrar.
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g. Costs
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h. Interest
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i. Such further or other relief as the Honourable Court may think just in the circumstances.
At the trial, the parties were the only witnesses and their evidence is summarized as follows:
The claimant is a 24 year old mother of two and she stated that she had a dating relationship with the defendant which commenced in March, 2013. At paragraph 8 of her witness statement she testified that she took nude photos of herself and sent same via WhatsApp to the defendant's phone for his private use when he was out of the country. She testified that she was aware that the defendant was living with ‘Kabrina’ who was the mother of his daughter but she said the defendant told her that it was just an arrangement of convenience. During the course of her involvement with the defendant, the claimant said that she took pictures of her engaged in fellatio with him. Eventually, she stated that she had concerns over the future of their relationship and ended it. Her evidence was that after the relationship ended she felt obligated on a moral level to inform Kabrina of her relations with the defendant. This disclosure, she said, was met by a violent reaction from the defendant and she asserted that the defendant then distributed the photos to several persons close to her including the father of her youngest daughter (Kasi), her friends, as well as to some of his own friends. The purpose of this disclosure she says was to embarrass and shame her.
Annexed to her witness statement were a series of screen shots of messaged conversations that she says she had with the defendant via their respective cell phones over WhatsApp and Viber as well as screen shots of messaged conversations between the defendant and two of her friends, Danielle and Amanda (collectively called ‘the messages’). The messages formed part of her unagreed bundle of documents and they were incorporated into her witness statement. The claimant's evidence was that notwithstanding attempts by her and her friends to plead with the defendant for him not to distribute the photos, the defendant was intent on destroying her and did so by distributing them. As a consequence she was subjected to public ridicule and embarrassment and she suffered from suicidal thoughts and became frustrated as she had to live in shame.
The claimant also testified that as a further consequence of the distribution of the photos she was also reassigned duties at work. During the course of her cross examination the authenticity of the messages which formed part of her evidence was not challenged. The claimant was also not challenged in relation to the effect, which she said, the distribution of the photos had on her.
The Court found that she was an impressive witness. Her responses in cross examination were consistent with her evidence in chief and were very direct. The claimant therefore engendered in the Court, an unshakable feeling that she was a witness of truth.
The defendant did not dispute that he had sexual relations with the claimant but he denied that they were “in a relationship”. He said that at all times they were both involved with other persons, he with Kabrina and she with Kasi. He stated that he sent some of the photos to Kasi but that this was done only after the claimant had shown some of the photos to Kabrina.
At paragraph 4 of his witness statement the defendant said that two of the photos which depicted the act of fellatio were taken at the claimant's request. The thrust of his defence was that it was the claimant who breached any confidentiality that existed in relation to the photos when she showed them to Kabrina and he said she did this as she wanted to disrupt his family life because he had ended the sexual relations that they enjoyed.
In cross examination, the defendant said that he took the photos depicting the act of fellatio because he did not trust the claimant and wanted to hold it over her head. This response was in direct contradiction to what he stated at paragraph 4 of his witness statement. He accepted that messages were in fact sent and exchanged between himself, the claimant and her friends Danielle and Amanda and that the screen shots that were exhibited were accurately reflected. The Court noted that in the various messages, the defendant never asserted that the claimant had shown the photos to Kabrina, in fact he accused her of having spoken to Kabrina.
The Court was not impressed with this witness, his responses were not direct and there were substantial contradictions between his evidence in chief and his responses in cross examination.
The pleaded case before the Court was founded upon the common law concept of breach of confidence and the Court had to consider whether this concept could be applied to the instant facts.
According to Gurry on Breach of Confidence: ‘The Protection of Confidential Information’ 2nd Edition (p. 107-108), the court exercises an equitable jurisdiction in restraining a breach of confidence independent of any right at law. This independent equitable jurisdiction, enables the court to grant relief in three scenarios with respect to confidential information where no remedy would normally be available at law.
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a. Firstly, where the parties to a confidential disclosure are not in a contractual relationship, equity provides the only basis for the court's intervention.
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b. Secondly, where a third party receives confidential information from a confidant in breach of the confidant's obligation of confidence, equity will restrain the third party from misusing that information.
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c. Thirdly, equity may restrain persons who have acquired confidential information in the absence of a confidential relationship. This applies to strangers who surreptitiously acquire information or who have actual or constructive knowledge that the information which has come into their possession is confidential.
For a claim of breach of confidence to succeed, the traditional requirements, as outlined by Lord Greene MR in Saltman Engineering Co. Ltd. v. Campbell Engineering Co Ltd (1948) 65 RPC 203 and Megarry J in Coco v. AN Clarke (Engineers) Ltd [1969] RPC41, are as follows:
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i. The information must have had the necessary quality of confidence, that is, it must not be something which is public property and public knowledge.
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ii. There must have been an obligation of confidence in the circumstances under which the information was imparted.
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iii. There must have been an unauthorized use of that information by the party communicating it to the detriment of the confider.
In Morison v. Moat 68 ER 492, the Court stated that if a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, express or implied of the plaintiff, he will be guilty of an infringement of the plaintiffs rights.
In the case of Campbell v. MGN [2004] 2 AC 457, Lord Nicholls described breach of confidence, in so far as it protects confidential (as opposed to private) information, as an equitable principle and Lord Walker in his dissenting speech observed that, ‘where there is no contractual tie the cause of action is the equitable jurisdiction to restrain… breach of confidence
Traditionally a duty of confidence will be imposed where confidential information is imparted in circumstances where the confidant either has notice (actual knowledge not being essential) that the information is confidential, or has agreed that such information is confidential, such as where there is either an expressed or implied term in a contract. In such a situation, the duty of confidence arises out of the nature of the relationship between the confidant and the person to whom the information relates and the confidant should not take an unfair advantage of such information, either through...
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