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
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.