High Court has set a precedent for war against revenge porn

Recently, the High Court dealt a good blow to the reckless behaviour, especially among former lovers or spouses, of releasing all the dirty linen in terms of private and nude pictures to the general public to ‘teach them a lesson.’ This decision is particularly important because it addresses a problem that has a gendered dimension. In this era where social media use has gone beyond bounds, the notoriety of ‘tea’ and ‘exposé has become a normalcy. You will find someone’s nude photographs, taken in very compromising and vulnerable situations and places, easily released to the media through ‘bloggers’ and ‘celebrities’ of the virtual spaces whose desire is to ‘trend’ or ‘get more monetisation’.

I say the menace is gendered because we know it as a matter of fact that although it affects both genders, women get most affected in the cases that we have seen so far. There is no known data to show this will be the future trend but at least we agree on the fact that most of these are released by jilted lovers and those on the journey of vendetta. Not anymore!

The court establishes certain points that are important to interrogate in so far as this matter is concerned. First, when one takes the nude photographs of a person that are private in nature, it is not enough to say that you are not the one who released them into the general public. Justice Rhoda Rutto found that once one is in possession of nude photographs, one has a duty of care to protect the persons in there in terms of the right to privacy under Article 31 and the right to be accorded human dignity under Article 28 of the Constitution.

The respondent, the man who was involved in the matter, argued that the social media accounts were in no way linked to him. However, he did not deny taking the said photos. He further argued that since he is also featured in the circulated pictures, if there is any breach of privacy and dignity then he is also aggrieved. The court rejected that explanation and affirmed that the duty to ensure that once the photos are in your custody, they do not leave or get circulated without the consent of the person involved. The failure to explain how the pictures, which he accepted he took and was in his custody, meant that although the Whatsapp and Facebook accounts that released them were not linked to him, he by omission, directly or indirectly allowed them to the public, a violation of the Constitutional rights of the lady identified as MNM in the court papers.

Secondly, the duty also extends to ensure the custody of the said photographs, which is personal data is not accessible by a third party who then decides to release them to the public in violation of the privacy and human dignity rights. The respondent made the argument that during the period of release or the leak of the said photographs, he was admitted to hospital and could not have done it. The court rejected this argument as well for he did not prove that his gadget during that period was inaccessible. Differently put, once you are a custodian of personal data, even the omissions and recklessness that would lead to their leak are punishable by law.

Thirdly, this decision sets a precedent that would bind even third parties who access the data, if by any chance a third-party gains access to data that could potentially violate privacy and indeed any right, they have a duty to preserve the same so they do not exacerbate the violations. Although the Whatsapp and Facebook Accounts that circulated the pictures were not sued in this case, the trajectory of the analysis places responsibility on any person who lands on such nude photographs to ensure they do not go further than that. The law would find them liable even if they were not involved in taking them or do not know the parties featured in there.

Lastly, this is a welcome jurisprudence that shows that our courts are alive to how technology and social media can be a fertile ground for violation of rights and misuse in damaging ways. Revenge porn has been a rampant model of inflicting psychological torture, duress and intimidation not only amongst those who once in the vanity of love, but also in the day-to-day settings in various facets of society. 

It has been used a tool for blackmail, extortion and manipulation because of the fear that comes with the embarrassment, the ridicule and the mockery that follows after the tales of an ‘exposé’. This decision is a reminder to the youth who consist of the highest population of social media users, be it Whatsapp, Instagram, Facebook or X (formerly Twitter) and many others, that their right of expression and use of technology can carry as dire consequences such as Sh2 million as the court ordered in this case. Certainly, our society must reflect on the interplay of family, social media and responsibility in this digital age. I hope you read the Constitution in your free time as a social media user.