The English High Court has awarded substantial damages (£97,000) in the first civil claim for sexual "image-based abuse" in a misuse of private information case. In FGX v Stuart Gaunt [2023] EWHC 419 (KB) (27 February 2023) Mrs Justice Thornton DBE stated that the term "revenge porn," whilst widely accepted, connotes that the victim may have done something wrong and so adopted the term "image-based abuse" in this case.
It is the first civil case to recognise the severe impact of sexual based-image abuse on the lives of victims. Thornton J accepted the impact on the claimant was "akin to the impact of sexual assault…albeit that the abuse…is image-based rather than physical". Thornton J opined that the "consequent degradation and humiliation for the claimant [the victim] considerably heightens the violation of her personal dignity and autonomy resulting from the misuse of her information [the images]".
Since 2015, it has been a criminal offence under Section 33(1) of the Criminal Justice and Courts Act to disclose a private sexual photograph or film:
- without consent of the individual who appears in the photograph or film, and
- with intention to cause that individual distress.
The offence applies both online and offline and to images which are shared on adult sites, social media, WhatsApp/text or by showing someone a physical or electronic image. This is sometimes accompanied by the publication of additional personal information about the subject, including their full name, address, and links to their social media profiles.
These invasive offences are on the rise. As of November 2022, around 1 in 14 adults in England and Wales had experienced a threat to share intimate images, with more than 28,000 reports of disclosing private sexual images without consent recorded by police between April 2015 and December 2021. The Revenge Porn Helpline reported a 40% increase in cases between 2020 and 2021.
The proceedings
The anonymised Claimant, FGX, was in a relationship with Mr Gaunt (the Defendant) and in 2016 began living with him. In 2017 she found microscopic cameras in the bathroom and bedroom where Mr Gaunt had been filming her naked.
FGX discovered that Mr Gaunt had uploaded images from the cameras onto a pornographic website, alongside a photograph of her face so that she could be identified. She also located screenshots evidencing that the Defendant had been paid for the images.
In September 2020, Mr Gaunt was convicted of voyeurism and other sexual offences. He received a two-year suspended sentence and was ordered to sign the Sex Offenders Register for ten years.
In December 2020, FGX issued proceedings against Mr Gaunt for: (a) intentionally exposing FGX to a foreseeable risk of injury or severe distress that resulted in injury; (b) breach of privacy; and (c) misuse of private information. Judgment was entered for FGX when Mr Gaunt failed to provide any defence to the claim.
Assessment of damages
In assessing damages, Mrs Justice Thornton DBE found that:
- the images were intimate images;
- the psychiatric report and witness evidence confirmed that FGX suffered from chronic PTSD because of the offences;
- the number of images uploaded to the pornographic website and the extent of replication and downloads was unknown;
- the likelihood of the images having been replicated elsewhere was high;
- the continued existence of the images online was a significant source of ongoing distress to FGX and a barrier to her recovery; and
- Mr Gaunt’s conduct had had a serious impact on FGX’s private life and lifestyle as she had lost trust in people and become reclusive.
Applying the guidance in MGN Ltd v Representative Claimants [2015] EWCA Civ 129 (the phone hacking cases) Thornton J found that:
- The images were FGX's private information and significant.
- Once downloaded, the images would remain available for viewing, even if FGX engaged a content removal company to assist her.
- The effect of repeated intrusions by publication can be cumulative.
- The consequent degradation and humiliation for FGX from this type of publication considerably heightened the violation of her personal dignity and autonomy.
- The impact on FGX was akin to the impacts of sexual assault, as listed in the Judicial College guidelines.
The following factors were aggravating:
- Mr Gaunt’s conduct, including uploading FGX’s face onto the pornographic website and the evidence that he had obtained payment for the images.
- Mr Gaunt’s failure to participate in these proceedings, which had deprived FGX of the opportunity to obtain information about the extent of publication.
Thornton J awarded general damages of £60,000, including a small uplift for aggravated damages. Thornton J also awarded special damages of £37,000 to cover medical treatment costs and image removals online (to the extent possible).
What are the options for victims of sexual image-based abuse?
As the law stands, victims of sexual image-based abuse pursuing legal action to protect their rights, including the fundamental Article 8 right to privacy, must rely on a disjointed range of causes of action. These span criminal offences through to copyright complaints, misuse of private information and data protection claims, and often must be applied across jurisdictions where adult websites host content internationally.
This decision should encourage victims of sexual based-image abuse to seek justice through both the criminal and civil courts. It shines a spotlight on the need for robust verification measures on adult and social media sites to stop intimate images being uploaded without subjects' consent in the first place. It also highlights the need for websites and platforms, which can profit from this material, to implement swift removal tools for victims. For example, the intimate celebrity images obtained in the 2014 iCloud hacks were uploaded to many of these sites and forums – clearly without consent. They spread across the globe from the dark web through to websites and mainstream social media platforms including WhatsApp.
Changes to the law
In our view, a broader review of the law and enforcement is required. In November 2022, the Government announced it would be implementing recommendations by the Law Commission to strengthen the law to protect victims of sexual based-image abuse. In the immediate term, the Government has put forward an amendment to the current draft Online Safety Bill, which would widen the scope of current intimate image offences so more perpetrators could face prosecution and ultimately imprisonment. The Government has said it will implement new measures to ensure the law "keeps pace with technology and can effectively tackle emerging forms of abuse". This will include criminalising deepfakes, specific offences for threatening to share images and installing equipment to enable images to be taken, a base offence of sharing intimate images without consent and new offences based on intent to cause humiliation, alarm, or distress and for sexual gratification.
If introduced into law, this will go some way to strengthening the legal framework. It may also lead to an increase in civil claims against perpetrators, and those adult websites, social media and other intermediaries which fail to block and remove this illicit content.
We advise clients in tackling online abuse, including publishers and platforms on their complex obligations in moderating content. We also work with the Queen Mary Legal Advice Centre to support the SPITE project (Sharing and Publishing Images to Embarrass), which provides free legal advice to victims of sexual image-based abuse.