Jeff_column

The Jeff Cumberbatch Column – Behind Closed Doors

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

Musings: Behind closed doors
11/1/2015
By Jeff Cumberbatch

[…]

“There is a disturbing trend to immortalise almost every facet of daily life by taking photographs and uploading them unto social media sites…
“…cognisant of the infinite reach of social media, it cannot be denied that the privacy of the person is under attack and there is dire need for the enactment of a statute to afford protection for citizen’s personal privacy…”
per Rampersad J [October 2015]

APART from the catharsis of writing a weekly column, I also relish the opportunity to share my views as a public scholar and commentator, with those few souls who choose to read my weekly musings. One of the banes of this aspect of existence is, of course, the discrimination each week of selecting one among those topics that are likely to prove instructive, as well as capable of fomenting intelligent public discourse.

Infrequently, there is no such embarrassment of riches and then one is faced with another bane – the prospect of having nothing on which to comment, knowledgeably or at all. Not so this week, however. This piece is being prepared on the eve of All Souls/Saints/Hallows Day, increasingly becoming more familiarly known as Halloween, even in these parts. It might have been worthy of commentary that we should appear more fascinated with the dark side of that occasion, “when the dead can hear and the dead have sight”, as opposed to the next day’s glorification of dear departed souls, but it has ever been thus.

Of note too was the intriguing contrast in another section of the press last week Wednesday, between its front-page lead story that announced the imminent commutation of the sentences of “a string” of death row inmates, while the back page informed that the services of an overseas expert in forensic pathology were being sought in order to assist with the determination of the cause of death and identification of a probable murder victim.

Given the existing disconnect between current populist sentiment that sees the hanging of convicted murderers as an effective solution to the relative frequency of local homicides, and the unlikelihood of this punishment being officially carried out in future in light of our treaty obligations, the clear contrast between those stories nicely mirrors our present predicament.

However, the event that held most interest for me during the week was the delivery of the judgement of Justice Rampersad, in what was arguably a seminal decision on the tort of “revenge porn”, as it has become known. Its prurient value aside, this decision from Trinidad & Tobago also emphasises the adaptability of the common law in its capacity to remedy injustice and an iteration of the absence of a law to protect privacy in regional jurisdictions.

As for the use of the common law, there are more than a few laypersons who believe that the absence of an express provision in a statute signifies that there is no law on a particular matter. This would be, however, erroneously to discount the substantial body of case law that may have been built up over the centuries, based on principles of fairness and the remedying of culpable injury through precepts emanating from, as it has been said, the breast of the judges.

The concept of “revenge porn” is self-explanatory; it is the dissemination to third parties and, sometimes, the public of photographs – usually of the female in the nude, or other depictions of sexual activity between the parties taken during the relationship – by one of the parties, most frequently in retaliation for the unilateral termination of that relationship. The intent is to embarrass, humiliate and cheapen the victim in the eyes of those right-thinking members of society who are now made privy to the formerly private pornographic matter.

Clearly, such conduct is to be abhorred by reasonable people and constitutes a reprehensible breach of trust. And while some jurisdictions such as Florida have chosen to prohibit this form of behaviour by way of statute, [sexual cyber-harassment], the judgement of Rampersad J in the recent matter involving the West Indies cricketer, Lendl Simmons, and his former lover, the improbably surnamed Therese Ho, emphasises that the law is not powerless, even absent condign legislation, to redress such an injury to the victim.

On the evidence in the case itself, Simmons had undisputedly committed the wrong, although he claimed that he did so as a response to Ho informing his then companion, and now wife, of their affair; a classic case of revenge. Although there is a lack of clarity in the judgement as to which party precisely took the photographs depicting Ho engaging in fellatio with Simmons – she claimed it was her; he affirmed that he did it, “because he did not trust her and wanted to hold it over her head” – nothing turns on this, given that it was not controverted that Simmons had had possession of the photos and had distributed them to Ho’s boyfriend, and probably others as well.

Rampersad J, even though he admitted the absence of a local law against the invasion of privacy, at least in that precise form, had no doubt that Simmons’s conduct was a flagrant breach of the mutual duty of confidentiality owed between sexual partners. Quoting from a Western Australian decision, he agreed that “intimate photographs and videos taken in private and shared between two lovers would ordinarily bear a confidential character and be implicitly provided on condition that they not be shown to any third party…”

On this basis, Ho informing Simmons’s then partner of the existence of the relationship would equally have been a breach of confidentiality, especially since it was understood between the parties that this would have been kept secret, although any reliance on self-defence by Simmons would of course fail, given the enormity of his response.

While it was not necessary for his decision, the learned judge took some time out in his judgement to pray for “overdue” legislative intervention to curb Internet excesses, such as the use of anonymous obscene and racist language and the posting of defamatory statements. His suggestion that there should be a rebuttable presumption of ownership and responsibility for material posted on one’s social media page, Facebook account or emanating from an individual e-mail’s address, seems unlikely in my view to gain much traction, given the modern emphasis on freedom of expression and the perception that the Internet marks a new frontier in political (in the broad sense, of course) communication.
Indeed, the learned judge himself appeared to recognise this cultural evolution to some extent when he stated, “…Technological advances have dramatically increased the ease and speed with which such communication can be disseminated to the world, and the process of capturing and disseminating an image to a broad audience can now take place over a matter of seconds by a few finger swipes…”

The question now begs, asking – should we place this new wine of rapid communication within the constraints of old wineskins, except where, as in Ho v Simmons, protection of a victim is clearly merited? The seeming contradiction in the epigraphs above should provide a cautionary tale.

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11 Comments on “The Jeff Cumberbatch Column – Behind Closed Doors”

  1. Caswell Franklyn October 31, 2015 at 9:13 PM #

    Jeff

    I do not understand how revealing the relationship between Simmons and Ho could be regarded as a breach of confidentiality, unless Ho was a boy or Ho was indeed a ho. To my mind a man/woman relationship certainly should no embarrass either party in the normal course of things.

    Like

  2. Anthony Davis October 31, 2015 at 9:21 PM #

    The problem here is: How much leeway can we give the police to investigate and prosecute people for what is called internet trolling? Germany has gone the way of using the laws already on their statute books for prosecuting people – including students. They use the laws pertaining to harassment and defamation, for example, and they have set up special police units to deal with such matters. Persons can be held responsible for the person’s ill health stemming from any internet trolling, e.g. there was the case where a student was harassed so much on the internet by another student that she was afraid of leaving home, and the perpetrator was indicted for causing her instability. It works in Germany, but it will not necessarily work in Barbados because Germany has very a very open Freedom of Information act and real freedom of expression – but it does not include harassment, defamation of character,etc.

    Like

  3. Sargeant November 1, 2015 at 12:52 AM #

    Neither Simmons nor Ho subscribed to the dictum “Do not kiss and tell” and if both informed each other’s partners isn’t that offsetting penalties as they say in North American football? In this case Simmons transgression was viewed as more serious since he had the video and photographic evidence and a picture is worth a thousand words or $150,000. T&T smackers.

    On a more serious note this is not “internet trolling” but cyber bullying and two provinces (Nova Scotia and BC) now have laws on the books prohibiting this type of behaviour following the deaths of two minors in those jurisdictions who were victims of this activity.

    Like

  4. ac November 1, 2015 at 8:37 AM #

    A very interesting case not unheard of but interesting to say the least,
    On the issue of free speech and the social media daring to be out and opened with out fear or favour
    The reality usually goes against the grain of what is “supposed” to be due process by law especially when those doing the mischief becomes mystified and victims of the same mischief
    The time would come when the collective voices cry out enough is enough but only when misdeeds are thrown in their faces,
    Then and only then would the court voices of silence become un-muted by law,

    Like

  5. David November 1, 2015 at 9:28 AM #

    @Jeff

    This case was a slam dunk of sorts but then we could so easily have had variants to adjudicate. What if one of either players had had their media storage devices hacked? Then there is the amorphous nature of social media where websites/domains are domiciled, the anonymity etc.

    Views?

    Like

  6. Jeff Cumberbatch November 1, 2015 at 10:24 AM #

    Agreed, David. Simmons really had no defence as such. His response to Ms Ho’s releasing the fact of their relationship to his girlfriend /wife was excessive and he had no other defence to a breach of confidentiality.

    If his account had been hacked, he would not have been responsible for the breach, and under our law there is little likelihood of an intermediary or domain host being held responsible for the publication of these photos before it is alerted that they might be injurious to a party.

    Incidentally, Caswell, confidentiality is premised on the two parties sharing a secret that they want to keep from reaching the public domain, so that even though some men would not mind the public knowing that they had a secret relationship, the point is that it is also confidential to the other party.

    Like

  7. Dompey November 2, 2015 at 5:30 PM #

    Jeff

    How does the expression of one’s racist beliefs causes harm to another reputation that a judge would ask to curb such expression over the medium of social media?
    The expression of racist sentiments falls within the periphery of constitutional protection.

    Like

  8. Well Well & Consequences November 2, 2015 at 6:13 PM #

    http://www.nydailynews.com/news/national/king-african-americans-wondering-leave-u-s-article-1.2420910

    Dompey, have you been following these.

    Like

  9. Hants November 3, 2015 at 11:39 AM #

    This is interesting.

    “The court is assuming that she got the worse of the situation because she is a woman. Both had the pleasure of the act but Simmons played the card of the conqueror and Ho played the card of victim. Isn’t that the cultural norm?”

    http://www.nationnews.com/nationnews/news/74067/nette-effect-simmons-ho-equally-fault#sthash.ZvsnietS.dpuf

    Like

  10. William Skinner November 4, 2015 at 12:43 AM #

    @ Caswell Franklyn,

    First, what does being a boy have to do with it ?

    Second, to quote you, “To my mind a man/woman relationship certainly should no embarrass either party in the normal course of things.’

    In my opinion there is a vast difference between a breach of confidentiality and an embarrassment .

    Like

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