Wilson v Ferguson

Wilson v Ferguson [2015] WASC 15 is an important decision of the Supreme Court of Western Australia concerning the unauthorised publication of intimate photographs and videos. The case dealt with the legal consequences of sharing sexually explicit material on social media without the consent of the person depicted in it.

The dispute arose after the defendant published intimate content of the plaintiff on Facebook following the end of their relationship. The material had been exchanged or obtained during the course of a private and intimate relationship. The Court held that the publication amounted to a breach of confidence.

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The decision is particularly significant because the Court recognised that compensation for breach of confidence could extend beyond financial loss. It accepted that the unauthorised publication of intimate material may cause serious humiliation, emotional distress and loss of dignity. The Court also acknowledged the speed and scale at which private content may be distributed through the internet.

Background of Wilson v Ferguson Case

The plaintiff and the defendant were employed as coworkers in a mining company. They entered into an intimate relationship in November 2012. During the relationship, they occasionally exchanged sexually explicit photographs and videos through their mobile phones.

The nature of the communications indicated that the material was intended to remain private. The images and videos were shared in the context of a personal relationship and were not meant for circulation among other persons.

The defendant also obtained certain explicit videos of the plaintiff in another manner. He used her phone to email those videos to himself without first obtaining her consent. When the plaintiff became aware of this, she expressed her displeasure. The defendant then assured her that the videos would remain confidential.

This assurance further strengthened the understanding that the intimate material was private and could not be published or used without the plaintiff’s permission.

Facts of Wilson v Ferguson

On 5 August 2013, the plaintiff decided to end the relationship. At approximately 11:49 am, she communicated her decision to the defendant through a text message.

Later on the same day, the defendant uploaded sexually explicit photographs and videos of the plaintiff to his Facebook profile. He also added comments suggesting that the material had been posted because the plaintiff had ended their relationship. The publication was therefore not accidental. It was connected to the breakdown of the relationship and was intended to humiliate the plaintiff.

The plaintiff did not have a Facebook account. She was informed about the posts by her friends at approximately 5:20 pm. By that time, a number of people had already viewed the material. Those persons included mutual acquaintances and coworkers of the plaintiff and the defendant.

The plaintiff repeatedly asked the defendant to remove the content. The defendant eventually deleted the posts at approximately 7 pm. However, the material had remained visible for a considerable period and had already been seen by persons connected with the plaintiff’s personal and professional life.

The publication caused the plaintiff severe humiliation and emotional distress. She attended several sessions with a psychologist. She was also unable to return to work for around three months. Her employment was subsequently terminated.

The plaintiff approached the Supreme Court of Western Australia seeking compensation for breach of confidence. She also sought an injunction restraining the defendant from publishing or distributing any further intimate photographs or videos depicting her.

Issues Before the Court

The Court in Wilson v Ferguson was required to determine the following main issues:

1. Whether the defendant’s publication of sexually explicit photographs and videos of the plaintiff amounted to a breach of confidence.
2. Whether the plaintiff was entitled to an injunction restraining the defendant from publishing similar material in the future.
3. Whether equitable compensation could be awarded for emotional distress and humiliation caused by the breach of confidence.
4. Whether the plaintiff had established that she suffered a psychiatric injury as a result of the defendant’s conduct.

Legal Principles Relating to Breach of Confidence

The Court referred to the principles governing breach of confidence, including those discussed in Commonwealth v John Fairfax & Sons Ltd. It identified three essential requirements for establishing a breach of confidence.

Confidential Nature of the Information

The first requirement was that the information must possess a confidential character. Information that is already publicly available cannot ordinarily be protected through an action for breach of confidence.

In the present case, the photographs and videos were sexually explicit and deeply personal. Their nature clearly indicated that they were not meant for public viewing. The plaintiff had also communicated the private character of the material to the defendant.

The Court therefore found that the intimate images and videos were confidential in nature.

Information Obtained in Circumstances Importing Confidence

The second requirement was that the information must have been obtained in circumstances that created an obligation of confidence.

Most of the material had been exchanged during the course of an intimate relationship. Such communications were understood to be private. The relationship between the parties and the nature of the content created a clear expectation that the material would not be disclosed to others.

The defendant had also obtained some videos by emailing them to himself from the plaintiff’s phone without her consent. When the plaintiff objected, he promised that the videos would remain confidential. This promise made the duty of confidence even clearer.

The Court concluded that the defendant possessed the intimate content in circumstances that required him to maintain its confidentiality.

Unauthorised Use of Confidential Information

The third requirement was the unauthorised use or disclosure of the confidential information.

The plaintiff had not consented to the publication of the photographs and videos on Facebook. The defendant uploaded them after she ended the relationship. The comments accompanying the posts indicated that the publication was retaliatory and intended to embarrass her.

The defendant’s conduct therefore amounted to a deliberate and unauthorised use of confidential material.

Wilson v Ferguson Judgment

The Supreme Court of Western Australia in Wilson v Ferguson held that the defendant’s publication of the plaintiff’s intimate photographs and videos constituted a breach of confidence.

All three elements of the action were satisfied. The content was confidential, it had been obtained in circumstances creating an obligation of confidence and it had been used without the plaintiff’s authority.

The Court granted both injunctive relief and equitable compensation to the plaintiff.

Conclusion

Wilson v Ferguson [2015] WASC 15 is a significant case concerning privacy, dignity and breach of confidence in the digital age. The Supreme Court of Western Australia held that the defendant acted unlawfully by posting the plaintiff’s sexually explicit photographs and videos on Facebook without her consent.

The material was confidential, it had been obtained during an intimate relationship and the defendant was under a clear obligation not to disclose it. His publication of the content after the relationship ended was deliberate, retaliatory and unauthorised.

The Court granted an injunction preventing further publication and awarded equitable compensation for the plaintiff’s distress and humiliation. At the same time, it refused additional compensation for psychiatric injury because such injury had not been adequately established.