Only a matter of time before victims seek compensatory justice for distributing of private images

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25 August, 2020

On the 13 March 2020, The Queen's Bench Division of the Media and Communications List passed judgment in the case of Alexander Aristides Reid v Katie Price [2020] EWHC 594 (QB) . This important decision supercedes the phone hacking cases of Gulati v MGN [2015] EWHC 1482 & [2015] EWCA Civ 1291 and Mosley v News Group Newspapers Ltd [2008] EWHC 1777 and adds to the body of growing case law on damages for breaches under the new and emerging data protection legislation.

The case stems from the turbulent celebrity marriage between Katie Price, former glamour model, and her husband of 2 years, Alex Reid. Mr Reid brought an action against Ms Price for retention and dissemination of explicit video recordings and photographs obtained during their marriage which exposed his private sexual practices and an alleged fetish for cross-dressing. Upon discovery that Ms Price held the material on a laptop at her home, Mr Reid claimed that he sought immediate undertakings from her that she would not disclose these images or information. Ms Price then subsequently breached her undertakings by distributing the images to national newspapers, together with allegedly showing private footage of it on her mobile phone to a live studio audience of a late night TV programme she had appeared on.

Mr Reid issued proceedings in the High Court and originally made an offer to settle at £60,000, prior to Ms Price being declared bankrupt in November 2019. In March 2020, a High Court judge ruled that Ms Price must now pay Mr Reid £25,000 in damages. During the court hearing, Mr Reid's Barrister argued that the ordeal resulted in him being 'denigrated in the street' and had considerably affected his mental health. It was suggested that that there had been systematic, widespread and long-standing aggravating features to the case, wherein Price's conduct had involved the deliberate exposure to a substantial number of people of the images and videos of Reid's intimate sexual activities. These were taken without his consent and were shown to others by Price, despite her knowing that he positively objected. The court heard that the images were disclosed and re-shared to complete strangers causing him to have his private sex life repeatedly revealed causing him to suffer a real loss of personal dignity and harm to his self-esteem. Mr Reid told the court that as a result of the malicious behaviour by Ms Price he had been mocked and denigrated as a sexual deviant and predator, as a result of which he had suffered psychological injury and sought counselling.

It was decided by the High Court Judge that Ms Price had breached the given undertakings in relation to Mr Reid's privacy. The importance of this decision is that it supercedes the phone hacking cases of Gulati v MGN [2015] EWHC 1482 & [2015] EWCA Civ 1291 and Mosley v News Group Newspapers Ltd [2008] EWHC 1777. having successfully argued that as there could be no defence to the maliciousness and dishonesty by Miss Price, aggravated damages should be awarded on the basis that those damages can be exercised to compensate victims to reflect the loss of control over such personal data; and that as the case has a relationship with defamation, privacy and personal injury cases; damages can be made without specific details or records of the wrongful activities.

Judge Warby J viewed the nature of Ms Price's conduct as malicious, confirming:-

"The defendant's conduct has considerably aggravated the harm caused by the disclosures themselves. Her behaviour has been persistent, flagrant, arrogant, high-handed, and inexcusable, and for those reasons very distressing and hurtful to the claimant. The claimant's perception that the defendant has lied about whether she retained copies of the personal Information, and that she has acted maliciously, is reasonable, and he is entitled to be compensated for the distress he has suffered as a result. The defendant's frequent additional references or allusions to the Private Information, sometimes in threatening terms, have caused additional upset, rubbing salt in the wound".

This case appears to have been distinguished significantly on quantum to the earlier cases of Mosley and Gulati, on the basis that the disclosures in this case, after the undertakings were given by Ms Price, did not reveal anything secret. By that point Mr Reid's private life was already a matter of public knowledge, compared with Mosley, in which the claimant's sexual preferences were only first revealed publicly by a newspaper without any prior notice. In addition, the information was not originally obtained from any unauthorised access to personal information (in Gulati, Mr Alan Yentob was awarded £85,000 after his phone was hacked). It was only therefore the later retention and dissemination of the images that was in issue here.

The main finding in this case appears therefore to be the aggravated nature of Ms Price's conduct, demonstrating that damages for psychological injuries will be connected to the gravity of the conduct of the defendant. Usually a general breach of data without any aggravating circumstances may only attract minimal damages for distress under section 13(2). (i.e. £750 was awarded in Halliday v Creation Consumer Finance Limited [2013] EWCA Civ 333 under this head). The consensus therefore appears to be that aggravating circumstances by malice, without specific evidence of psychiatric harm, are unlikely to draw more than minimal awards in favour of the affected individuals.

With the growth of the internet and the prevalence of smart phones, the virtual world has become such a normal part of everyday life, it is inevitable that claims of this nature will rise in the future. Parliament have already recognised revenge porn as a growing problem by passing legislation that makes it a criminal offence to 'disclose a private sexual photograph or film if the disclosure is made (a) without the consent of the individual who appears, and (b) with the intention of causing that person distress' - s33 of the Criminal Justice and Courts Act 2015. Until fairly recently a civil claim for victims of those who have been the subject of non-consensual publishing of intimate or indecent images online, was not thought possible. However it appears now in the UK there is growing evidence that the courts are 'catching up' with the exploitation of technology.

However, to successfully pursue a civil compensation claim against someone who has taken indecent digital images, or who has distributed these without consent, you need to first be satisfied that they have sufficient financial assets to satisfy any judgment and pay legal costs. You would need to check that they owned tangible assets, and that any property they owned has sufficient equity in it. There would be limited value to a court judgment in your favour if the perpetrator was not then in a position to pay you your award of compensation and costs. Enforcement of any judgement can also be costly.

While this area of the law remains under review, it is only a matter of time before victims consider using all legal routes at their disposal to seek justice, including the civil law.

For more information contact Lisa Atkinson in our Data Breach Claims department via email or phone on 01254 222448. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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