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Tortious liability for “revenge porn”
The dissemination of intimate images without consent, or “revenge porn” as this despicable practice is colloquially termed, is a criminal offence. One need only look at the strictures of the Penal Code to determine this (Sections 292 and 509 of the Penal Code).
The tort of privacy
Malaysian law, rather unfortunately, does not seem to offer wholesale support to the tort of invasion of privacy. It would appear that the tort is limited to matters of private morality and modesty, although there are conflicting decisions on this.
Initially, the decisions of Lee Ewe Poh v Dr Lim Teik Man [2011] 1 MLJ 835 and Maslinda Ishak v Mohd Tahir Osman [2009] 8 MLJ 826 seemed to indicate that the tort was nascent (see also Sherinna v Kent Well [2014] 7 MLJ 298; Chan Ah Kien v Brite-Tech Berhad [2019] MLJU 2017).
However, subsequent decisions appear to have placed a limit to this. In Mohamad Izaham v Norina Zainol Abidin [2017] 7 MLJ 772, Vazeer Alam J noted that the Court of Appeal decision of Dr Bernadine Malini v MPH Magazine [2010] 5 MLJ 755 had curtailed the tort of privacy. It is not absolute though, as the tort may be limited to instances of private morality and modesty.
An excellent discussion of the difficulties of the tort may be seen in a discussion by Abdul Wahab JC (as His Lordship then was) in Toh See Wei v Teddric Jon Mohr [2017] 11 MLJ 67 (see also John Dadit v Bong Meng Chiat [2015] MLJU 1961).
The tort of invasion of privacy would probably extend to “revenge porn” as it involves private morality and modesty. It has not been tested yet.
Malaysian Courts do, however, recognise the tort of breach of confidence (Ng Kim Fong v Menang Corporation [2020] MLJU 644).
The Canadian position
Guidance for a “revenge porn” situation in the context of civil litigation may be found in the Canadian authority of Jane Doe v N.D. [2016] ONSC 541 (CanLII).
The facts of Jane Doe are as tragic as they are straightforward. JD (female) and ND (male) were in a relationship. He pressured her, on numerous occasions, to send intimate videos of herself. JD refused. ND was importunate.
JD finally relented. She sent him an intimate video. ND then proceeded to upload the video onto a website.
Once discovered, JD was devastated. In the words of Stinson J:
[9] The plaintiff was devastated, humiliated and distraught to discover what the defendant had done. She contacted the defendant's mother, with whom she had a positive relationship, and told her what had occurred. The mother determined that the defendant had posted the video, and advised the plaintiff that he had removed it from the website. The police were contacted but, in light of the plaintiff's age, they declined to become involved.
[11] The consequences for the plaintiff arising from the defendant's conduct have been significant and long-lasting. She had to defer her Christmas exams because she was physically and mentally distraught over learning that the video had been posted online. She was so upset that she could not sleep and barely ate anything. She could not focus on school and skipped class and stayed in bed.
[12] When she went home over the Christmas break, she barely showered for days on end, never went out and stayed in bed for pretty much the entire day. She could not fall asleep until between 4:00 and 6:00 a.m. because she was constantly thinking about what had happened. She had no appetite and would go days barely eating. Her mother was so concerned about her mental health that she took her to a crisis intervention centre at a hospital. She cried for most days and "had no emotion or life". [page357] In her words, she "felt like a very cold person and felt like everything in my life and all of my beliefs and morals had been stolen from me".
[13] She saw a counsellor at her school for over a year and a half to deal with the emotional fallout from the posting of the video. She experienced serious depression and emotional upset. On the occasions since the incident when she has encountered the defendant, she has become emotionally distraught and unable to cope, sometimes collapsing. Her reactions in such situations resemble so-called "panic attacks". According to the plaintiff, when they have made eye contact the defendant has had "an insolent look on his face, as if he is proud of himself" and he has shown no remorse.
[14] The plaintiff remains conscious of the fact that the video was viewed by acquaintances of the defendant, that its existence is known to other members of her former social circle and has caused harm to her reputation. Even today, more than four years after the incident, she is emotionally fragile and worried about the possibility that the video may someday resurface and have an adverse impact on her employment, her career or her future relationships. She continues to be distraught about the incident and afraid that these feelings will haunt her for a long time to come.
The civil suit
Of note would be the fact that the police, despite having been contacted and despite having the necessary criminal framework in place to prosecute, declined to proceed.
JD then initiated a civil suit against ND. She premised her claim upon:
The tort of breach of confidence;
Intentional infliction of mental distress; and
Invasion of privacy
ND does not attend to Court proceedings
In true cowardly fashion, ND did not attend to the Court proceedings. He pulled a few stunts but ultimately, an application for leave to enter Judgment in Default against him was allowed.
The Court undertook a detailed and meticulous assessment of the claim and awarded JD:
Damages of $100,000;
Interest of $5,500.00;
Costs of $36,208.73.
The Court further directed injunctive relief, directing that any and all intimate videos and/or images of JD be destroyed.
ND was further injuncted from disseminating the same. Finally, an injunctive order was also ordered, proscribing ND from communicating with either JD or her family members.
The Malaysian position
In Jane Doe, the Court recognised that “revenge porn” is a tort:
[19] For the reasons that follow, I have concluded that there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition.
A strong factor in support of tortious liability would be the fact that criminal sanctions were attached to what ND had done. This lent support to the notion that civil recourse must, of course, be available to the victim of such wrongful conduct.
Jane Doe has received positive lateral treatment (ES v Shillington [2021] ABQB 739).
For the Malaysian context, should a victim be subject to an unlawful dissemination of intimate photographs (or even the threat of dissemination), the proper course of action would be to firstly injunct the defendant.
From there, a sustainable cause of action could be mounted as-against the defendant. As this is a developing area of the law and given that the dissemination of images is becoming easier by the day, there is no doubt that cases shall crop-up. It is hoped that the facts of Jane Doe and the ratio of Stinson J would be of use to a presiding judge.
GAVIN JAYAPAL
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