Lendl Simmons and Therese Ho are in breach of confidence (Updated)

Cricketer Lendl Simmons playing a shot for the West Indies during the tour match against Leicestershire at Grace Road. (Photo credit: Wikipedia)

Lendl Simmons is in the news and it’s not for his cricketing skills.

It’s for his lack of non-cricketing acumen—rather the appearance of it.

The West Indian cricketer has been dragged to court by a love interest with whom he had an extra-marital affair.

Account executive, Therese Ho, is seeking damages from the sportsman for breaching the common law principle of confidence by leaking intimate photos of her.

Simmons, in his defence, claimed that the plaintiff was the one who first breached his confidence by sending a picture to his fiancée—now his wife.

Simmons then sent the aforesaid photograph to Ho’s spouse.

He said:

“It was not an act of revenge or malice. I was  upset.”

Ho feels otherwise.

She says she believed that it was her moral obligation to tell Simmon’s fiancée of their relationship.

The judgement will occur on October 26. It is considered to be momentous given the increasing use of smart phones and social media in the dissemination of information.

Justice Frank Seepersad is presiding over the case.

The verdict depends on who can prove who did what first.

Ho claims further that Simmons shared her explicit pictures with teammates Kieron Pollard and Dwayne Bravo while in India.

Wikipedia states:

“Breach of confidence in English law is an equitable doctrine which allows a person to claim a remedy where their confidence has been breached. A duty of confidence arises when confidential information comes to the knowledge of a person in circumstances where it would be unfair if it were disclosed to others. Breach of confidence gives rise to a civil claim. The Human Rights Act has developed the law on breach of confidence so that it now applies to private bodies as well as public ones.

English courts will recognise a breach of confidence if the following three things are present:

• The information has ‘the necessary degree of confidence about it’
• The information was provided in circumstances importing an obligation of confidence
• There was an unauthorised use or disclosure of that information and, at least, the risk of damage”

Historically, privacy has never been a concern under English common law except for the breach of confidence doctrine.

That has changed since the Human Rights Act 1998 incorporated the European Convention on Human Rights into English law.

The earliest definition of privacy is by Judge Cooley who said it was simply “the right to be left alone“.

Article 8 of the European Convention on Human Rights deals with privacy. It reads:

“Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Whether Lendl Simmons is acquitted or not is for the esteemed judge to decide. Methinks, the real aggrieved parties are Simmons’ and Ho’s spouses. Don’t you agree?

Update:

Judge Frank Seepersad pronounced Lendl Simmons guilty on October 26, 2015. The cricketer “has been ordered to pay TT$150 000 (BDS$47 393) in compensation for leaking sexually explicit photographs of Therese Ho, an account executive with whom he had an affair. ”

Justice Seepersad, in his ruling, said:

“. . . His statement as contained in the messages that ‘she was just a f–k’ is unacceptable. The treatment of women as mere objects of pleasure is offensive, derogatory, antiquated, has no place in a civilized society and is indicative of the general lack of respect.

On the evidence, the Court is convinced that the defendant wanted to inflict mental and emotional harm to the claimant . . . There can be no circumstance that is more private and confidential than where parties are engaged in consensual sexual activity in private . . . All photographs and recordings which capture sexual practices conducted in private should only be disseminated where the express consent of all the parties involved has been obtained.

The distribution of sexually explicit images including the uploading of such material unto the internet, without the consent of the depicted subject cannot be condoned in civilized society.”

He added:

“The impact of social media and its consequent effect on individual and collective privacy have to be acknowledged and addressed.

Deeming legislative provisions that create a rebuttable presumption of ownership and responsibility for material posted on one’s social media page, Facebook account or from an individual’s email address should therefore be considered. The time for legislative intervention is long overdue.”

The full text of the verdict is available here.