Introduction
‘Revenge porn’, as the non-consensual distribution of private sexual images and videos has been termed,Footnote 1 is conceptualised as an inextricably modern phenomenon which the law is not appropriately equipped to deal with.Footnote 2 The advent of smartphone technology has ensured that sexually explicit material can be created easily (with or without the knowledge of all parties)Footnote 3 and disseminated quickly. An increasing number of individuals (generally, though not necessarily, women)Footnote 4 have fallen victim to this phenomenon in recent years. This has led to calls for legislative intervention.Footnote 5 Many academics and campaigners have taken the view that the publication of such material deserves to incur punishment by the criminal law.Footnote 6
In England and Wales, legislative intervention of this kind has occurred in the form of the Criminal Justice and Courts Act 2015.Footnote 7 This Act criminalises individuals who ‘disclose private sexual photographs and films with intent to cause distress’.Footnote 8 In 2016, similar legislation was passed by the Scottish Parliament,Footnote 9 with regulations giving effect to the provisions pertaining to revenge porn entering into force as of 24 April 2017.Footnote 10 Those convicted of the crime of ‘disclosing, or threatening to disclose, an intimate photograph or film’Footnote 11 now face up to 12 months in prison on summary convictionFootnote 12 or five years in prison if convicted on indictment.Footnote 13
It is submitted that the potential for recourse to the criminal courts does not provide sufficient remedy for those affected by this conduct, however. Victims ought also to be considered to be due monetary redress in respect of the infringement of their privacy and their rights of personality via compensation by way of a civil law remedy. With that said, the damage done by revenge porn need not necessarily be economic. Victims of revenge porn are likely to suffer from severe emotional distress and upset (resultant psychological issues aside),Footnote 14 but these injuries are non-patrimonial and the victim need not have suffered any noticeable or quantifiable loss. This can consequently make it difficult to frame an action for damages according to the common law.
This paper asks if the specific Romanistic delict iniuria might offer appropriate remedy in instances of revenge porn. The actio iniuriarum was, in the Roman law, a delict which served to protect the non-patrimonial aspects of a person's existence – ‘who a person is rather than what a person has’Footnote 15 – their physical body, their reputation and their esteem.Footnote 16 As the propagation of sexually explicit images of an individual without their consent is clearly an affront to the esteem of that individual,Footnote 17 and is likely to significantly damage their reputation,Footnote 18 it is submitted that victims of revenge porn ought to be entitled to solatium. Furthermore, as it is submitted that an actio iniuriarum may be brought against anyone who shares and continues to propagate revenge porn, not merely the first person who uploads it, this paper also argues that the actio iniuriarum is a means by which victims of revenge porn may discourage the continued spread of the offending material, even on the internet.
The actio iniuriarum was unequivocally received into Scots law in the Institutional period,Footnote 19 although Scotland's connection with the action has since been neglected.Footnote 20 There is currently conflicting academic opinion which holds that the doctrine is dead, on the one hand,Footnote 21 and that the doctrine still has a part to play in the development of Scots law, on the other.Footnote 22 In light of the fact that the Outer House explicitly found it necessary to make use of the actio iniuriarum in deciding the 2006 case of Stevens v Yorkhill NHS Trust,Footnote 23 this paper takes the latter view and argues that the actio iniuriarum still offers scope for a robust doctrine of ‘rights of personality’Footnote 24 to develop in Scots law. There is no reason to eschew the use of old law in the face of new problems. Since revenge porn is a contemporaneous challenge which the law now faces, unimagined in bygone days, this paper submits that it is entirely appropriate that the Scottish actio iniuriarum should develop to protect the privacy and dignity of individuals in contemporary Scots law, given Scotland's Romano-Dutch heritage.
It is submitted that the provision of solatium is absolutely appropriate in instances of revenge porn and that the law of Scotland ought to move to recognise this, given that the present remedies which the court can offer are lacking. This paper shall establish that such actions clearly fall within the scope of iniuria as it is understood in historic and contemporary Scots law, and argues that the particular and peculiar problems associated with actions arising out of revenge porn cases can be addressed under this heading.
The actio iniuriarum is a product of the Civilian legal tradition. There is no equivalent in the common law system.Footnote 25 With that said, the Protection from Harassment Act 1997 introduces a protection akin to that offered by the actio iniuriarum to those living under English law;Footnote 26 consequently, this paper also considers whether or not a civil claim may be brought in England, Wales or Northern Ireland under this statutory heading. The 1997 Act applies in Scotland, although the applicable provisions are slightly different in this jurisdiction. Nevertheless, as ‘most conduct which falls foul of the Act in Scotland is likely to fall foul of the Act in England, and vice versa’,Footnote 27 this paper also considers the likelihood of a claim for redress in relation to revenge porn succeeding under this statutory heading in Scotland.
Ultimately, it is submitted that victims of revenge porn ought to be entitled to civil remedy, whether this ought to be paid under the statutory heading of harassment or according to the traditional actio iniuriarum. Although it is clear that a number of practical problems will remain, given the complex nature of this new phenomenon and the reality of the internet, it is hoped that the requirement to provide civil compensation may serve to deter potential perpetrators of revenge porn.
Defining revenge porn
For the purposes of this paper, revenge porn is understood as the non-consensual publication of sexually explicit material, such as photographs or videos, in order to cause distress or harm to the subject. The motive for the publication of the material need not be ‘revenge’, in spite of this title; the phrase revenge porn here is to be understood as referring to any non-consensual publication of sexual material.Footnote 28 This definition has found usage in officialFootnote 29 and unofficial dictionariesFootnote 30 and has been adopted by academics for the purposes of setting out a precise meaning of revenge porn.Footnote 31 In addition to this definition, however, it is submitted that sexually explicit material shared without the consent of the subject depicted in the material, for the sole purpose of offering gratification to others or, indeed, for any other purpose, should also fall within the definition of revenge porn.Footnote 32 As it is the fact of publication without consent that truly reflects the harm of revenge porn – the ‘gross invasion of the victim’ spoken of by Sheriff Mackie – it is thought that any sexually explicit content uploaded to the internet or otherwise published without the subject's consent is to be properly regarded as revenge porn. The stated or purported purpose of the publisher, if at all relevant, is ancillary to any claim (at most); the fact that the victim subsequently felt hurt or upset is more significant to any claim for solatium.
This expanded definition would allow instances such as the publication of nude photographs of Jennifer Lawrence to be rightly regarded as actionableFootnote 33 – leaving aside the complications of international private law, which are beyond the scope of this paper – and would more properly align with the understanding of the scope and purpose of the delict iniuria presented in this paper. As shall be demonstrated throughout this paper, all forms of the actio iniuriarum – in Roman, South African and Scots law – would permit a claim for solatium in any instance of the above, albeit that each system might utilise differing taxonomy in classifying the harm caused. A celebrity who has suffered a form of online ‘hacking’ has as much of a claim against the perpetrators and publishers of revenge porn as an ex-lover who created or consensually received the revenge porn material, given the breadth and flexibility of the law of delict and the actio iniuriarum therein.
The actio iniuriarum and the essence of ‘iniuria’
The actio iniuriarum has consistently received far less academic attention than actions brought under the lex Aquilia, both in the Roman writings and in contemporary scholarship.Footnote 34 The lex Aquilia served to offer remedy to those who suffered proprietary damage and to compensate those who suffered damnum. The concept of the actio legis Aquiliae recrudesced during the second life of Roman law and even exhibited influence on the common law tradition during the foundational period of that legal family.Footnote 35 The actio iniuriarum, on the other hand, was concerned with protecting individuals from injury to their person and enjoyed a ‘less than triumphant fate’ during the second life.Footnote 36
The term ‘iniuria’ is etymologically complex. Justinian ascribed several meanings to it, stating that it may denote any act done without legal justification,Footnote 37 the specific wrong done by a judge who imposes an unjust sentence,Footnote 38 an act implying dolus or culpa under the lex Aquilia Footnote 39 – commonly recognised in the damnum iniuria datum – or an act which causes compensable affront to another.Footnote 40 The last of these represents the specific delict ‘iniuria’; a contumelious attack on the dignity of a freeman, which may give rise to a compensable claim.Footnote 41
Contumelia,Footnote 42 which has been variously defined as ‘insult’,Footnote 43 ‘contempt’,Footnote 44 and ‘disrespect’,Footnote 45 lay at the heart of the Roman delict of iniuria Footnote 46 and, thus, their conception of the actio iniuriarum.Footnote 47 The use of the term ‘insult’, in understanding contumelia, has been favoured by some English writers, as this allows those writers to draw a ready parallel between verbal attacks in the Roman law and the English law of tort.Footnote 48 This approach is ill-advised;Footnote 49 the Romans understood the concept of iniuria as the Greeks understood their concept of hubris,Footnote 50 to which the closest English language analogue is ‘contempt’, indicating a lack of respect for the personality of another.Footnote 51 The Romanist Professor Ibbetson therefore suggests that the best translation of contumelia may be ‘disrespect’,Footnote 52 though current Scottish jurisprudence appears to suggest that the Scots judiciary prefers to interpret the word as ‘affront’.Footnote 53
In the post-classical period of Roman law, contumelious intent to effect affront could cause otherwise lawful conduct to be considered iniuria both in the sense of ‘unlawful conduct’ and in the sense of the specific delict.Footnote 54 In the words of Professors Descheemaeker and Scott, ‘as long as the wrongdoer's purpose was to bring his victim into disrepute, his conduct – whatever it was – was potentially actionable’.Footnote 55
By the classical period of Roman law, one could inflict iniuria and exhibit contumelia by words or by a physical actFootnote 56 and the affront caused to one's corpus, fama and dignitas was the essence of actions in respect of verbal injury just as for iniuria realis – injuries which would contemporaneously be understood as ‘assault’.Footnote 57 The classical Romans and their successors therefore recognised that reparation could be owed in respect of both physical and verbal attacks under the actio iniuriarum. Footnote 58
Verbal injury (iniuria verbalis)
Just as the Roman law recognised iniuria verbalis in the context of the actio iniuriarum, so too does English law recognise the concept of verbal injury in the torts of slander and libel.Footnote 59 There is no unified tort of defamation,Footnote 60 but the two separate torts offer some protection to those defamed and ‘in general, an action lies for the malicious publication of statements which are false in fact and injurious to the character of another’.Footnote 61 The malicious publication of sexual images and videos is clearly not actionable as slanderFootnote 62 and it is not generally actionable as libel, unless the propagation of the offending images is accompanied by a false statement or a malicious innuendo.Footnote 63 With that said, the term ‘words’, in statute, has been interpreted in such a way so as to include both ‘pictures and visual images’.Footnote 64 Thus, it is submitted that any wrong involving the unauthorised publication of a picture or video ought to be understood as a verbal, as opposed to ‘real’, injury, particularly as ‘real’ injuries are typically only those which involve physical acts.Footnote 65
While the essential elements of defamation in the form of libel may ostensibly apply to instances of revenge porn, and one can construct at least a prima facie case in every instance,Footnote 66 one cannot construct a definite case in every instance. Any libellous statement must necessarily be falseFootnote 67 and so while one may be able to establish libel if the images were posted with an implication that the subject of the attack was a ‘slut’, or a ‘whore’ or suchlike,Footnote 68 however this implication may be imputed,Footnote 69 in the absence of this innuendo the simply publication of private images will not be actionable under this heading, however great the actual damage to the victim's reputation.Footnote 70 According to English law, veritas non est defamatio;Footnote 71 if an individual publishes an intimate image without the consent of the subject of that image in an instance of revenge porn, but does not add a defamatory statement (be it a statement or an innuendo) when doing so, the subject of the illicitly published material will have no recourse under the law of libel.Footnote 72
With that said, any publication which implies that a woman is not chaste was specifically actionable as a result of statutory interventionFootnote 73 until the Slander of Women Act was repealed by the Defamation Act 2013Footnote 74 (a comparable publication concerning a man would not have been actionable under the legislation).Footnote 75 As revenge porn is clearly injurious to the character of the victim, and as it obviously implies a lack of chastity,Footnote 76 there would have been scope for one to argue that revenge porn ought to be actionable according to the tort of libel using this Act, though this would hardly have been a satisfactory means of prohibiting the propagation of revenge porn, as forcing a woman to accept that she is ‘unchaste’ in the pursuit of a legitimate grievance appears to be a blatant instance of ‘victim blaming’. Victims of revenge porn can never be regarded as ‘ideal victims’Footnote 77 and so those who upload such material routinely regard their conduct as justifiable on grounds that the victim ‘had it coming’ as a form of ‘shame punishment’.Footnote 78 To suggest that a statute such as the Slander of Women Act ought to be used to curtail revenge porn plays into the victim-blaming narrative by implicitly suggesting that no woman should ever be involved in the creation of private sexually explicit material.
Accordingly, libel is not a wholly satisfactory foundation on which to rest all actions against revenge porn. The tort of ‘breach of confidence’ may, however, offer better recourse in English law. Though the English courts have hitherto avoided creating a specific or defined tort to protect privacy,Footnote 79 they have nevertheless recognised that there are occasions on which the publication of private images or information may be actionable;Footnote 80 if one is under a ‘duty of confidence’, then one is bound not to publish or otherwise disseminate information which is held in confidence.Footnote 81 As such, given the private nature of sexual relations, the assumed level of mutual trust and respect in sexual relationships and the intimate nature of homemade sexual images or videos, one may legitimately claim that a sexual partner is legally bound under a duty of confidence to refrain from sharing sexually intimate material, whether such content is sent to them by their partner or created by them personally.
The problem with using breach of confidentiality as an action for remedy in instances of revenge porn is readily apparent. It may be used against the sexual partner who initially shares the intimate material, but once the material is published on the internet it may be readily and lawfully shared by others who are not bound by the duty of confidentiality. Breach of confidentiality offers remedy when there has been ‘[a]n intrusion – an unbecoming and unseemly intrusion … offensive to that inbred sense of propriety natural to every man’,Footnote 82 but one cannot claim for any intrusion beyond the initial breach of confidence. This action cannot, therefore, be used to prevent the spread of intimate images which have already been uploaded into the public domain.
Roman law offers more comprehensive, and more appropriate, protection from verbal injury than the English common law by dint of the actio iniuriarum. The actio iniuriarum allows for one to found an action based on insult alone; this cannot be done under English law.Footnote 83 A successful claim under the actio iniuriarum requires no more than that the real or verbal injury inflicted on an individual's personality interests be caused contumeliously.Footnote 84 There is no requirement for falsity in a verbal attack and so the problems which are inherent in raising an action for libel are not encountered. The complexities of breach of confidentiality need not be contended with; there is no need to establish that a perpetrator was bound by any specific duty to refrain from disclosing anything, thus anyone who subsequently and contumeliously shares intimate material may be pursued by a claimant. The actio iniuriarum, in Roman, Scots and South African law, consequently can be said to offer greater protection to the victim of revenge porn than one pursuing an action founded in breach of confidence.
It is not difficult to extend the protection from verbal injury offered in respect of the contumelious publication of harsh words to verbal injury caused by the contumelious publication and propagation of intimate images, as the English experience demonstrates. English law expressly recognises that one may be defamed by the publication of libellous pictures as well as by false statements.Footnote 85 South African law similarly recognise that one may suffer iniuria verbalis as a result of the malicious publication of photographs.Footnote 86 It is therefore quite clear that, even if one takes the strict view that contumelia is a separable element of iniuria which must be proven along with animus iniuriandi and the fact that the conduct committed was contra bonos mores, all revenge porn cases could be actionable according to the Roman actio iniuriarum. Revenge porn is almost a textbook example of improper shaming and, as the victims are generally rendered infamis, as the Romans would have understood that term, it is accordingly evident that any claim made by them would be, prima facie, competent. Animus iniuriandi could easily be established in most, if not all, such cases: the intention behind maliciously uploading and sharing intimate images and videos is obviously to affront or degrade the subject of the material, to say nothing of any breach of confidence or expectation of privacy. Contumelia is clearly present wherever consent is blatantly disregarded. Violating the sexual autonomy or integrity of an individual goes against the basic moral fabric of contemporary society and can undoubtedly be considered adversus bonos mores. Footnote 87
The Roman understanding of the actio iniuriarum does not provide an accurate account of the modern law in either Scotland or South Africa, however. As both of these jurisdictions were greatly influenced by both the ius commune jurists and the Anglo-American tradition, and both received something closer to Romano-Dutch law rather than ‘pure’ Roman law, their concept of the actio iniuriarum is rather different from the conceptual framework of the delict discussed above. In addition, in spite of their shared heritage, both jurisdictions have treated the action in very different ways. Scotland has neglected her connection to the ius commune; South Africa has embraced it. Accordingly, this paper shall presently consider the place of the actio iniuriarum in South African law, before comparatively analysing the same within the context of Scots law.
Rights of personality and the actio iniuriarum
Although the actio iniuriarum (appearing in its modern form as the actio injuriarum) was received into those jurisdictions which have been influenced by the Romanistic tradition, its presence is now merely residual in some Civilian legal systems.Footnote 88 In the mixed jurisdiction of South Africa, however, the actio iniuriarum has thrived and, while the delict made rather ‘staccato progress in the nineteenth and twentieth centuries’,Footnote 89 it now stands alongside Aquilian liability and the action for pain and suffering as one of the pillars of the South African law of obligations.Footnote 90
As the lex Aquilia did somewhat influence English law in its developmental period, the word iniuria is also familiar to most English lawyers. With that said, however, the actio iniuriarum has no ready counterpart in the history of common law jurisdictions.Footnote 91 The closest equivalent would be found in the early law of trespass,Footnote 92 but this is a weak comparator. The Anglo-American tradition has come to favour a ‘pigeonhole system of nominate torts’ in preference to the broad blanket of delictual liability preferred in the Civilian traditionFootnote 93 and accordingly, as there is nothing akin to the Romanistic iniuria in the common law tradition, any attempt to understand the modern, South African notion of iniuria through the lens of a single, nominate action is impossible.Footnote 94 In addition, trespass does not and has never protected personality rights as the actio iniuriarum has done.
The phrase ‘the English law of tort’ is itself something of a misnomer.Footnote 95 England does not really have a law of tort, per se, but rather a law of torts. This slight semantic difference is no mere matter of pedantry; English law recognises only a finite, distinct and nominate number of ‘wrongs’ which are actionable.Footnote 96 Actions which infringe dignity do not fit within any of these ‘torticles’.Footnote 97 The South African law of delict, conversely, is very much that: an unbroken system which recognises a potentially infinite number of wrongs, as it regards as actionable anything which does injury to an individual's corpus, fama or dignitas and it will order reparation in respect of damnum iniuria datum. Between its connection to the common law and the ius commune, South Africa has developed a unique system of civil law to protect personality rights.Footnote 98 It has done so using the same sources available to Scottish jurists, albeit to far greater effect. Thus, though South Africa has not yet passed any legislation to exclusively proscribe or prevent the publication of revenge porn, victims of it are afforded some effective legal recourse. In addition to the potential for a civil claim in respect of the infringement of one's privacy or personality rights,Footnote 99 since the propagation of revenge porn is an example of an occurrence which unlawfully and seriously impairs the dignity of the victim, the conduct is also criminalised by way of the crimen injuria.Footnote 100
The South African law of defamation has been greatly influenced by the Anglo-American tradition.Footnote 101 It does not, however, strictly divide the delict of defamation into the torts of slander and libel and so its law remains profoundly Civilian in this respect. Nor is their legal practice akin to that of England; in South Africa, the maxim veritas convicii non excusat has become entrenched, although there is a ‘dissenting strand’,Footnote 102 which is English in substance if not in root,Footnote 103 which maintains that truth is a defence for any claim of convicium or defamation. With that said, in spite of its connection to the common law, the method by which privacy is protected by non-defamatory actions in South Africa would be unrecognisable to an English lawyer.
Though publication is regarded as an element for the purposes of this aspect of the infringement of privacy, it does not follow that the wrong is founded on the same base as defamation. Defamation consists of an attack on reputation resulting from publication while infringement of privacy is grounded in an impairment of dignitas.Footnote 104
Scotland, although heavily influenced by the common law tradition in its law of ‘personality rights’, has a well-established, foundational connection to the actio iniuriarum. Bankton called on it by nameFootnote 105 and Stair had earlier alluded to a general obligation of reparation which appears to have been influenced by the concept.Footnote 106 Yet with that said, the law pertaining to the protection of personality rights in Scotland ‘remains a thing of shreds and patches’;Footnote 107 that particular jurisdiction has not built up robust doctrines designed to protect privacy as comparable Civilian jurisdictions have done.Footnote 108 Unlike South Africa, which used its connection to the ius commune to great effect, Scotland grossly mistreated the actio iniuriarum throughout the course of the nineteenth and twentieth centuries,Footnote 109 during which time her lawyers began to eschew its Civilian roots in favour of the English Common law.Footnote 110
The Civilian tradition had come, in the nineteenth century, to be associated with dictatorship, while the Common law tradition was viewed by Scots as progressive, liberal and preferable to the repressive Romanist regime.Footnote 111 This reflected a trend whereby it was thought, quite simply, that it was ‘time to close the old books’.Footnote 112 As a result of this, although Scots law had the potential to develop a full-blooded, hearty system of personality and privacy rights, no such structure was realised. The Scots law of ‘personality rights’ developed, and has continued to develop, in a manner akin to English law.Footnote 113
As noted, English law does not naturally recognise any ‘high-level principle’ protecting privacy or personality rights;Footnote 114 its practical focus and endemic distrust of legal academia precluded the development of any doctrine in this directionFootnote 115 until the European Convention on Human Rights was adopted into domestic law.Footnote 116 The importance of the Scottish actio iniuriarum has, accordingly, been very much diluted over the years,Footnote 117 however it must be noted that unlike English law, which has struggled to cope with the reception of the Article 8 right to privacy into domestic law, Scots law at least has the potential to draw on the South African innovation of treating one's privacy as an aspect of one's dignitas and protecting it by dint of the actio iniuriarum.Footnote 118
Iniuria initially had a role to play in both the civil law of delict and the criminal law, but as the nominate delict and crime of assault emerged, its importance in the criminal sphere deteriorated into desuetude.Footnote 119 It does, however, remain within the framework of the Scottish civil law.Footnote 120 Just as delict in South Africa remains an unbroken system which acts to compensate those who suffer as a result of culpa, so too can the Scottish law of delict act to compensate those who suffer loss or injury as a result of an indefinite number of intentional or unintentional wrongs.Footnote 121
Iniuria, within the context of the actio iniuriarum, is generally understood as ‘injury’ caused by ‘affront’ in the Scots literature on the subject and in Scottish jurisprudence.Footnote 122 This allowed Professor Whitty to persuasively argue that the three Scottish post-mortem casesFootnote 123 were clearly decided according to the logic of the actio iniuriarum on grounds of the judicial reference to ‘affront’ made in them, in spite of the fact that the delict of iniuria was not expressly mentioned in any of these cases.Footnote 124 One year later, a Scottish Outer House case expressly vindicated his argumentFootnote 125 and ultimately held that the law of Scotland continues to recognise actions for affront and hurt feelings under the actio iniuriarum.Footnote 126 In such cases, a court may order that solatium must be paid, although this solatium is ‘a different animal’ to that awarded for physical or psychiatric injury.Footnote 127
Scots law therefore has an intrinsic advantage over English law as a result of its connection to the actio iniuriarum. In 2003, Lord Bonomy recognised that a right to privacy could be fashioned from existing principles of the Scots law and that, in the course of the case of Martin v McGuiness, counsel did not direct him to any authority which suggested that Scots law was as inimical to the concept of privacy rights as English law.Footnote 128 In the case of Murray v Beaverbrook Newspapers Ltd, however, Lord Thomson maintained that he knew ‘of no authority to the effect that mere invasion of privacy, however hurtful and whatever its purpose and however repugnant to good taste, is itself actionable’.Footnote 129
In spite of Lord Thomson's comments, the possibility of action where animus iniuriandi can be established remains open.Footnote 130 According to Professor Smith, if the pursuer who alleged a breach of privacy in Murray had been ‘subjected to contumely beyond the ambit of comment on his public activities’, then ‘a remedy might well have been competent. Mere lack of precedent should be no obstacle and in most civilised countries some protection is afforded by the law in respect of a citizen's private life’.Footnote 131
The promulgation is revenge porn is not simply a mere invasion of privacy. It seriously infringes the dignitas of the victim and accordingly any affront to the victim's privacy is necessarily connected to this infringement of dignitas.Footnote 132 Revenge porn is, if nothing else, a contumelious verbal attack which effects affront. In the words of the institutional writer Erskine:
A verbal injury, when it is pointed against a private person, consists in the uttering of contumelious words, which tend to vilify his character, or render it little or contemptible… The animus iniuriandi which is of the essence of this crime, being an act of the mind, must be inferred from presumptions; and, in general, it is presumed from the injurious words themselves, especially when they are made use of to hurt one in his moral character, or to fix some particular guilt upon him; as if one should give his neighbour the name of thief, cheat, liar etc …Footnote 133
It must be noted that, like the Romans, Erskine considers that the perpetrator's display of animus iniuriandi is intrinsically bound to the execution of the contumelious act itself.
Consequently, as it is not difficult to substitute the phrase ‘injurious words’ for ‘injurious material’ contemporaneously, as the English and South African experiences indicate,Footnote 134 it is evident that one can consider the uploading of sexually explicit material to the internet, in the absence of consent from the subject of the material, as a verbal attack on the basis of the actio iniuriarum according to Scots law. Revenge porn is already judicially recognised as ‘an invasion… A gross invasion of the victim’.Footnote 135 Accordingly, the publication of such material is clearly an affront to the dignitas of the victim, as well as being an invasion of their privacy and an attack on their fama. As the actio iniuriarum exists to confer solatium on those who suffer such affront, it is submitted that the victims of revenge porn ought to be able to avail themselves of this legal mechanism.
In addition to the harm effected by the plain publication of revenge porn, in the modern context, it would not be a stretch to place the word ‘slut’ before Erskine's use of ‘etc …’, or, indeed, to understand that indefinite nature of ‘etc …’ implicitly includes it within the list's ambit. Thus, it is suggested that in addition to there being an action arising out of the affront caused by the plain publication of revenge porn, there is additional scope available to the law to categorise the publication of revenge porn on websites which are explicitly designed to denigrate the subjects of such publications as a specific form of verbal injury in such a manner that the purported ‘truth’ or otherwise of the alleged verbal attack is immaterial to the claim.
Verbal injury, as a form of iniuriae, justifies a claim for solatium, here understood as the payment of compensation in recognition of the fact that a wrong has been committed. Loss, or lack thereof, is immaterial to such a claim. Although the dicta of Lord President Robertson appear to suggest that a verbal injury could be conceptualised as patrimonial loss caused by a malicious statement,Footnote 136 this view swims against the tide of over two thousand years of scholarship.Footnote 137 Almost all Civilian commentators, and all of the Scottish Institutional writers, base their understanding of iniuria verbalis on the Digest;Footnote 138 accordingly there is no reason to suggest that verbal injury, in Scotland, means anything more than a compensable form of injury resulting from a verbal attack.
In light of Lord Bonomy's dicta, Professor Smith's comments and Erskine's understanding of iniuria verbalis, and in considering the recrudescence of the actio iniuriarum in Stevens v Yorkhill NHS Trust, it remains distinctly possible that the actio iniuriarum may be – indeed, ought to be, according to Smith's view – properly revived. In Scotland,
[T]he proper scope of the actio iniuriarum has always been to deal with those many situations where there has been deliberate affront to the pursuer (or negligence so gross as to be the equivalent of intent) and the pursuer's feelings have consequently been hurt. Damages are for non-patrimonial loss (solatium) and the malicious purpose of the defender is always relevant.Footnote 139
If this action is wholly forgotten, then a gap will form in Scots law, and individuals who ought to be entitled to compensation may be denied remedy.
This is evidenced by the case of Ward v Scotrail Railways Ltd. Footnote 140 Therein, Lord Reed appeared to suggest (on the basis of English authorityFootnote 141 and a Scottish negligence caseFootnote 142) that mere emotional distress cannot be considered compensable by Scots law.Footnote 143 The decision, therefore, ostensibly appears to entirely overlook the Romano-Dutch origins of Scots law and seems to merge two separate strands of the law of delict together by mistakenly equating the iniuria of the damnum iniuria datum in the law of negligence with iniuria in the context of the actio iniuriarum.
This state of affairs arose as a result of the fact that counsel made no pleadings of deliberate intention or malice; had they done so, the claim for emotional distress would have been regarded as actionable (as the court appeared to concede).Footnote 144 While it is evident that no action for fright or mere distress may be brought under an actio legis Aquiliae, or an action for negligence,Footnote 145 as ‘affront’ is the salient feature of the actio iniuriarum, it is evident that intentionally inflicted iniuria ought to give rise to a claim for solatium where the conduct of the defender displays culpa, regardless of any loss suffered by the pursuer. Loss is a salient feature of the lex Aquilia, but not the actio iniuriarum. Solatium is payable to those who have been wronged by injurious conduct under the actio iniuriarum, even if the pursuer has suffered no loss or personal injury;Footnote 146 thus, it is equally clear that one who suffers pure emotional distress ought to be considered compensable according to the actio iniuriarum.Footnote 147
As actual loss or damage is not essential for a claim to be raised under the actio iniuriarum, a pursuer need only aver and prove three things: conduct which violates a legally protected interest in personality, dignity, honour or reputation (ie a wrong); affront to, or aggression on, personality causing hurt to feelings; and dolus – called, in this context, animus iniuriandi.Footnote 148 In all instances of revenge porn, all three of these elements may be easily established; it is therefore evident that the malicious dissemination of private, intimate images is a textbook example of an instance in which an actio iniuriarum ought to be available to a pursuer. Sharing such material in the absence of consent is an affront to the victim. Whether the perpetrator intends to cause affront or not is irrelevant; recklessly sharing private, sexually explicit material is so obviously wrong that animus iniuriandi can be inferred. It is almost self-evident that a victim of revenge porn will suffer emotional hurt and thus be entitled to solatium.Footnote 149 The malicious purpose of the propagator of revenge porn may be presumed, particularly in instances in which the images in question are uploaded to sites specifically designed to shame the subjects in the pictures, but also where the perpetrator places the images on public fora such as social media sites.
In concluding that the actio iniuriarum was no mere ‘romantic Romanism’, Professor Norrie maintained that the Scottish courts could, if they deemed it desirable, build upon the concept of iniuria once more, in order to provide solatium in ‘appropriate contexts’.Footnote 150 It is evident that instances of revenge porn represent such an ‘appropriate context’. Although contemporary society no longer considers verbal injury and name-calling to have any ‘socially destructive potency’,Footnote 151 the hurt caused by the propagation of revenge porn is socially destructive. It represents a violation of the sexual freedom of the victim, as well as a callous disregard for their privacy. The publication and propagation of revenge porn is undoubtedly a deliberate affront; to reiterate the words of Sheriff Mackie, it is ‘a gross invasion of [the] victim’.Footnote 152
Consequently, it is clear that, in spite of the fact that the actio iniuriarum has been neglected by Scots law, the Scottish actio iniuriarum may theoretically be used to provide remedy for victims of revenge porn. The ‘pure’ Roman law would have regarded revenge porn as a compensable iniuria, had the publication and promulgation of sexual photographs and videos been possible in antiquity, and South African law does evidently offer solatium to victims of contumelious publication of such material. There is, therefore, no reason for Scotland to eschew use of its familial connection to Rome and South Africa in addressing contemporaneous societal problems such as revenge porn; indeed, as the European Convention on Human Rights remains within the framework of Scottish domestic law,Footnote 153 at least for the moment, there is a case to be made for the suggestion that the Scottish courts are obliged to resume the development of the actio iniuriarum, given that the right to privacy is explicitly protected by the Convention and its enacting UK statute.Footnote 154 Whether privacy is regarded as a separable head under which an actio iniuriarum may be raised, or if it is regarded as no more than a manifestation of dignitas, it is plain that Scots law, by virtue of its connection to this actio, is in a better position to live up to its obligations under Article 8 than the Common law jurisdictions of the UK.
The desirability of a mechanism akin to the actio iniuriarum, and the need for such a mechanism in law, is demonstrated by virtue of the Harassment Act 1997. Though iniuria in the context of the actio iniuriarum is alien to the common law tradition, English lawyers may nevertheless find some guidance as to what constitutes ‘harassment’ within the context of the 1997 Act with reference to that delict.Footnote 155 Like iniuria, ‘harassment’ has ‘emerged as a wrong of astonishing versatility’;Footnote 156 according to Birks, the word is ‘the best generic description of the act involved in any example of iniuria’.Footnote 157 Thus, it is submitted, as the need for the actio iniuriarum is thought to be so pressing that a statutory equivalent was required in those jurisdictions which have no connection to it, the Scottish legal system – which may claim such a connection and offer remedy on the basis of this action – ought to make full use of the tools which are available to it.
Harassment and iniuria
Whether or not enough remains of the actio iniuriarum for the Scottish common law to adequately address the problem of revenge porn, it is likely that Parliament's statutory intervention in the form of the Protection from Harassment Act 1997,Footnote 158 which also applies to England and Wales, can be used to offer remedy to victims of this conduct. The word ‘harassment’ remains curiously undefined in the 1997 Act; as such, ‘a great deal is left to the wisdom of the courts to draw the line between the ordinary banter and badinage of everyday life and genuinely offensive and unacceptable behaviour’.Footnote 159
It is quite clear that, even without reference to iniuria, no court in the UK would regard the malicious publication of revenge porn as anything other than genuinely offensive and utterly unacceptable. Accordingly, the 1997 Act appears, prima facie, to offer some protection to victims of revenge porn. In England and Wales, the High Court may offer civil remedies to those affected by such conduct according to the 1997 ActFootnote 160 and, even in the absence of the explicit criminalisation of revenge porn effected by the Criminal Justice and Courts Act 2015, it is plain that the 1997 Act could also be used to secure a criminal conviction, in England and Wales, per s 2 of that Act.
While the 1997 Act may appear to be a sufficiently robust means of legally pursuing remedy, the problem with using this statute to pursue remedy for instances of revenge porn is readily apparent. The sections of the Act which apply to England and Wales proscribe ‘pursuing a course of conduct which amounts to harassment’,Footnote 161 but define a ‘course of conduct’ as ‘conduct on at least two occasions’.Footnote 162 The equivalent Scottish provisions reflect this definition.Footnote 163 As such, though a case might be made that one who uploads (or, indeed, subsequently shares) more than one piece of sexually explicit material has pursued a course of conduct which amounts to harassment on more than one occasion, no remedy will be available for a victim of a single instance of revenge porn under this heading. In addition, unless multiple images of one victim are posted and hosted on the same website, then there can be no action for harassment brought against the webmaster or controller of the website in question, absent the common law innovation of some civil equivalent of the Moorov doctrine.Footnote 164 Accordingly, it is evident that the 1997 Act offers less civil protection to victims of revenge porn than the actio iniuriarum can theoretically provide.
Conclusion
From the above, it is plain that the actio iniuriarum was, in Roman law, an astonishingly versatile delict. The term iniuria itself could be used in respect of a wide number of legal wrongs, but even when used in the specific context of an actio iniuriarum, almost any legal wrong causing affront to the extra-patrimonial interests of a legal person could be captured within the term's purview. As long as an act was carried out in order to display or effect disrespect towards the victim, it could be categorised as an actionable iniuria. On this basis, it is plain that if the Roman law of Justinian were to be directly transposed into a twenty-first century society, any victim of any instance of revenge porn would be entitled to raise an actio iniuriarum against the perpetrator and to seek the remedy of solatium in respect of the wrong.
That the actio iniuriarum was received into Scots law is not controversial; nor is the fact that it has consistently found use in Scots law even during its worst times of neglect. Since the law of Scotland has grossly neglected its connection to the actio iniuriarum since its reception, however, it is difficult to judge whether the action, as it exists in this jurisdiction, should be regarded as closer to the classical action as it existed in Roman law or the modern action as it exists in South Africa. Whatever the case in respect of this, it is plain that any instance of revenge porn ought to be considered actionable under the actio iniuriarum in Scots law; the ‘gross invasion of the victim’, which necessarily occurs in all revenge porn cases, is such that a legal wrong, a lack of respect for the victim and the victim's emotional distress might all be reasonably inferred. Thus, under any iteration or interpretation of the actio iniuriarum, it is plain that revenge porn cases are actionable in Scotland as a result of the harm which the publication and dissemination of such material inflicts on the victim's dignitas.
The desirability of an action akin to the actio iniuriarum may be imputed by the fact that the Protection from Harassment Act 1997 introduced both a civil and a criminal concept which is comparable to the actio iniuriarum in England and Wales, where there was no equivalent action at common law. The Act similarly introduced the concept of ‘harassment’ into Scots law, but it is here concluded that the concept of ‘harassment’ is, in many respects, a (less versatile) statutory duplication in Scots law of the concept of iniuria. It is submitted, here, that, as a result of the 1997 Act, instances of revenge porn may be actionable as ‘harassment’ throughout Great Britain, but it is also concluded that the Scottish common law actio iniuriarum is preferable to the statutory concept of harassment, since the former action may be brought even in the absence of a ‘course of conduct’.
Ultimately, it is plain that the law should act to offer civil redress to victims of revenge porn, just as it ought to criminally sanction those who disseminate such material. It is also clear that, though the ‘wrong’ of revenge porn is ostensibly a twenty-first century phenomenon, the common law of Scotland is appropriately equipped to tackle it. This paper has provided a consideration of ‘old law’ and how it can be utilised in order to solve contemporary problems; in order for this ‘old law’ to make a positive contribution to the modern Scots legal system, it must be utilised and pleaded by practitioners. Scotland's connection to this aspect of the civil law tradition has lain forgotten for generations. In light of the fact that it can now evidently be used to tackle an emergent societal problem, it is clear that it ought to lie forgotten no longer.
