Lexis Nexis analysis: High Court awards nearly £100,000 to image-based abuse victim (FGX v Stuart Gaunt)

Written by Iain Wilson, managing partner/head of Media and Communications Law at Brett Wilson LLP.  This analysis was first published on Lexis®PSL on 7 March 2023 and can be found here (£).  It is reproduced with permission and thanks.

Summary

In FGX v Gaunt [2023] EWHC 419 (KB), the claimant obtained £60,000 in general damages and £37,041.61 in special damages after suing her former partner for the misuse of private information and the intentional infliction of injury. The defendant had covertly recorded intimate images of the claimant and uploaded them to the internet, apparently for financial gain. The discovery of the images caused the claimant to suffer an emotional breakdown and develop post-traumatic stress disorder (PTSD) to the point that it caused a personality change. In addition to general damages for this distress/injury, the court awarded damages for consequential financial loss, including loss flowing from her immediate termination of the relationship on discovery of the conduct (including temporary accommodation costs, an aborted holiday and money spent on furniture for the couple’s home) as well as past and future healthcare costs and the estimated cost of removing material from the internet. It is believed that this is the first reported occasion in which the court has undertaken a full assessment of damages in a revenge porn/image-based abuse claim.

What was the background?

The parties were in what the claimant understood was a ‘loving relationship’. After having lived together for around a year, the claimant discovered that the defendant had covertly recorded her in the shower using a microscopic camera and while she slept topless. This information was found on the defendant’s hard drive. The claimant also found information suggesting that the images had been uploaded to the world wide web by the defendant, alongside a photograph of her face, in exchange for payment.

The effect on the claimant was profound. She suffered an emotional breakdown as a result of both the betrayal and the knowledge that the images were being viewed by strangers on an unknown number of websites. Her psychiatrist gave evidence at trial that she was suffering from PTSD which had caused an enduring personality change.

Separately, the claimant had suffered a relapse of an existing mixed anxiety and depressive disorder, of which greater than 50% was attributable to the defendant’s conduct. The claimant herself gave evidence that she had become reclusive, developed serious trust issues (taking herself off social media and seeking a home-working job) and struggled to sleep or concentrate.

The defendant, who had separately been convicted of voyeurism (receiving a two-year prison sentence and being registered as a sex offender for ten years), did not defend the claim. Accordingly, judgment was entered by default and the matter was listed for an assessment of damages before the Honourable Mrs Justice Thornton, DBE.

What did the court decide?

Thornton J considered the reviewed previous authorities concerning the deliberate publication of private information, while holding that the ‘consequent degradation and humiliation for the claimant considerably heightens the violation of her personal dignity and autonomy…’.  She considered the conduct to be even more serious that the phone hacking that was the subject of MGN v Representative Claimants [2015] EWCA Civ 1291. The most analagous case was Reid v Price [2020] EWHC 594 (QB), but this offered limited assistance as damages had been capped at £25,000 in that claim (as the defendant was bankrupt and recoverability was in doubt). Thus, Reid acted as a floor not a ceiling. ABC v West Heath 200 Ltd & Anor [2015] EWHC 2687, in which £25,000 in damages was also awarded, was the only case to which the judge was referred in relation to the tort of the intentional infliction of harm. However, although that case was also a disturbing one, (involving a minor who had been encouraged to send topless images to their vice-principal) it was held that the effect on the claimant was less serious.

The judge accepted the evidence of an expert psychiatrist that the claimant was suffering chronic PSTD, which fell into the ‘category B: moderately severe’ band set out in the Judicial College Guidelines 2022, which attracted an award of £20,570–£45,000. Separate to this, the exacerbation of the claimant’s existing mixed anxiety and depressive disorders together with the general distress and impact on the claimant’s private life and lifestyle (becoming reclusive/withdrawing from relationships) had to be factored in. Thornton J also considered that aggravated damages were available in principle (for uploading the claimant’s face alongside the photograph, for obtaining payment for the images and the defendant’s failure to participate in proceedings). However, the judge declined to make a separate award, mindful of the need to avoid double-counting.

The majority of the special damages claims succeeded: £1,375 for alternative accommodation, £4,348.99 for wasted expenditure on the property the claimant had lived in with the defendant, £614.77 for flights for a holiday that had been booked with the defendant, £4,522.93 for past healthcare treatment and £21,600 for internet ‘clean up’ work. An award of £4,416.20 was made for future treatment, about half the cost claimed on the basis that the ‘clean up’ work would hopefully have a positive impact.

An account of profit claim was abandoned as the claimant conceded there was insufficient evidence to establish how much the defendant had made from the images.

What are the practical implications of this case?

The sum awarded will not surprise media law practitioners who have been settling similar claims in this ballpark for a number of years. There has been a dearth of authority because such claims are normally settled at an early stage (a defendant being on a hiding to nothing and risking huge reputational harm by allowing a claimant to sue) or, alternatively, defendants have not been pursued because of concerns over recoverability.

FGX is a welcome authority as it should act as a deterrent to would-be wrongdoers, while also giving claimant lawyers something to point to when negotiating settlements. Nevertheless, practitioners should note that such claims are fact-sensitive.

In FGX, the court applied the eggshell-skull principle: the effect of image-based abuse on claimants can vary considerably. Here, the claimant’s lawyers had put good evidence before the court of psychiatric injury, distress, and the impact on the claimant’s life, as well as evidence from an expert on internet ‘clean up’ work (which can always be pursued as part of a special damages claim). A claimant cannot simply focus on the wrongdoing/culpability.

The disclosure of intimate images with the intention to cause distress has also been a criminal offence since the inception of section 33 of the Criminal Justice and Courts Act 2015 (CJCA 2015) (and other offences such as voyeurism may also apply). This has potentially provided victims with a practical remedy against impecunious defendants. However, practitioners should remember that civil liability is much broader.

CJCA 2015, section 33 is (rightly or wrongly) focused on the ‘revenge’ part of revenge porn, with the Crown needing to prove that the publication was motivated by an intention to cause distress. In other words, a defendant can potentially avoid liability if they are sharing images for other reasons (eg titillation, sexual gratification, bragging, financial motives, or a misguided attempt at humour). A party bringing a civil claim is not required to establish a motive. Moreover, the definition of ‘private’ is much broader than that required by CJCA 2015, section 33.

Finally, of note, the judge endorsed counsel’s view that the term ‘revenge porn’ was inappropriate as it could imply some wrongdoing on behalf of a claimant that justified the revenge. Accordingly, the term ‘image-based abuse’ was preferred.

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