In a watershed judgment, a victim of revenge porn was awarded civil damages in the amount of R4.3 million after her former fiancé and his wife shared intimate and explicit videos and images of her on Facebook.
In the recent case of KS v AM and Another, the South Gauteng High Court was tasked with adjudicating claims for, inter alia, general and special damages emanating from the creation of an impostor Facebook profile of a Johannesburg woman (‘the Plaintiff’), the non-consensual recording, publication, and distribution of intimate presentations of the Plaintiff on the aforesaid fake account, and defamatory communications by the Plaintiff’s ex-fiancé’s wife (‘the Second Defendant’) to several colleagues at her former place of employment.
In August 2014, the Plaintiff entered into a romantic relationship with an apparently single man (‘the First Defendant’). Unaware that her new partner was already married, the parties became engaged four months later. In January 2015, the relationship ended when the Second Defendant confronted the Plaintiff. The First Defendant refused to accept the Plaintiff’s decision to terminate their relationship and harassed her at her place of employment.
When the Plaintiff instructed an attorney to send a letter to the First Defendant requesting cessation of all contact, he threatened to distribute ‘porno videos’ he had recorded of them engaged in sexual intercourse to the Plaintiff’s attorney, friends, family, and colleagues. To that end, the First Defendant sent her a link to an impostor Facebook profile he had created and promised to invite everyone they knew to view the video if she did not agree to sexual contact. As proof, he forwarded a clip of the explicit content to the Plaintiff via WhatsApp. Crucially, the Plaintiff was unaware that her ex-fiancé had recorded intimate videos and images of her during their relationship.
The First Defendant’s threats materialised. Shortly after the videos and images were published, the Plaintiff was contacted by family and friends who had encountered the content. During the time it was available on the impostor Facebook profile, the content was also viewed by individuals unknown to the Plaintiff.
In addition to the publication and distribution of intimate images and videos of the Plaintiff, the Defendants used the online platform to post statements about the Plaintiff, calling her a ‘[h]omewrecker’ and questioning her morals and character. The Second Defendant further communicated to the Plaintiff’s colleagues that she had actively pursued a married man and exhibits ‘low’ values, and that the company should avoid employing women like her.
In light of the above, the Plaintiff averred, inter alia, that the Defendants’ conduct violated her rights to privacy and dignity, and infringed on her personal and professional reputation. The First Defendant’s non-consensual filming of intimate videos of the Plaintiff, and the subsequent publication and dissemination of these recordings, were designed to humiliate her. Resultantly, the Plaintiff experienced pain and suffering and requires ongoing medical treatment to remedy the emotional and psychological trauma caused by the Defendants’ conduct. She further alleged that the communication published by the Defendants amounts to defamation as it was ‘calculated to impute an immoral picture of [her]’, portraying her as a dishonest and promiscuous individual ‘who is a disgrace to her family and profession’.
Outlining the legal framework governing the novel area of civil liability for revenge porn, Mia J described the concept as ‘the publication of non-consensual intimate images, recordings or depictions’, which constitutes a ‘violation against persons.’ Indeed, the United Nations Special Rapporteur recognises revenge porn as infringing upon persons’ rights to dignity, privacy, and a violence-free life.
The seriousness of this conduct is recognised under South African law. Section 16 of the Cybercrimes Act criminalises the non-consensual disclosure of intimate images where it ‘violates or offends the sexual integrity or dignity of [the subject]’ or ‘amounts to sexual exploitation’. Additionally, section 11A of the Sexual Offences and Related Matters Act criminalises the non-consensual and harmful disclosure – or threat of disclosure – of explicit content. While the Plaintiff’s claims are civil in nature, the criminal provisions indicate the gravity of the infringement of persons’ privacy, dignity, and bodily integrity in this context.
Against this legal framework, Mia J characterised the Defendants’ non-consensual publication of intimate videos and images of the Plaintiff as ‘a recognised form of violence’, which converges with the violation of her constitutionally enshrined rights to dignity and privacy.
Crucially, Mia J highlighted the ‘far-reaching’ impact of the Defendants’ conduct on the Plaintiff’s life. Describing the First Defendant’s decision to secretly capture sexually explicit videos of the Plaintiff as ‘unconscionable’, the judge noted the profoundly negative effect of this ‘abusive’ and ‘invasive’ conduct on the Plaintiff’s emotional and mental well-being, health, career, and social life. As a result of significant emotional distress and humiliation, she suffers from post-traumatic stress disorder and depression. She developed alopecia, resigned from her job, and contemplated suicide. She has difficulty trusting people and maintaining romantic relationships, fears for her safety, and is reclusive.
In light of the above, Mia J held that the Plaintiff was entitled to damages in each instance of infringement intended to cause her harm. Accepting that damages cannot be calculated with ‘mathematical precision’, she awarded the Plaintiff R4.3 million in general damages, plus costs in the action on an attorney-client scale. Specifically, the First and Second Defendants were ordered to pay the Plaintiff R3.55 million, inclusive of R2.5 million in general damages for the operation of the fake Facebook account where they shared explicit videos of her, while the Second Defendant was ordered to compensate the Plaintiff an additional R750 000 for defamation.
As a first-of-its-kind ruling, the judgment recognises that the harm occasioned by the non-consensual capturing, publication, and distribution of intimate videos and images is a human rights violation, and sets the stage for the adjudication of future claims involving revenge porn.
