Dear April, I have had an opportunity of reading your well-articulated piece on the remedies that are available to your client. I must say that it is well thought–out. However, I would like to add my voice to the discussion at hand and by so doing look at other remedies that your client may fall on just so she is furnished with all the remedies that are available to her.
Most at times, we hear rumors about the demise of a person which turns out to be fallacious and maliciously perpetuated. The reason behind intentional death hoax is bleak and may vary but the central motive, I am tempted to believe, is to subject the victim to contempt and public ridicule.
A death hoax is a deliberate or confused report of someone’s death that turns out to be incorrect and murder rumors. There are numerous examples of celebrity death hoax including the one about Britney Spears and Justin Timberlake in 2001 when 2 Dallas Dj’s aired that the two celebrities who were in an amorous relationship had died in an accident.
Deducing from the definition, it suffice to say that the writer is interested in deliberate death hoax and not the one that arise from confused reports. This article seeks to articulate the possible remedies that may be available to a victim against a creator of death hoax.
For the purpose of this paper, let’s use the facts which were learned by my colleague April. Thus, where a person, for whatever reason surreptitiously obtains your picture from the internet or social media and then inscribes on the picture, “R.I.P Dear” with crying emojis and posts it on her whatsapp status for her contact list to view. What remedies are available to the victim (plaintiff)? Let’s take a look at the possible charge in criminal law before we discuss the civil aspect.
It is trite knowledge, if not for the general public, for the law students that a set of facts can have both criminal and civil liabilities and consequences. Under our criminal laws, that is, the Criminal and other offences Act, 1960 Act 29 (hereafter referred to as Act 29), threat of death is a second degree felony offence. So the question is whether a death hoax creator can be charged with and be convicted of the offence of threat of death. According to section 75 of Act 29, a person who threatens any other person with death, with intent to put that person in fear of death commits a second degree felony. As a criminal offence, we need to establish the actus reus (the physical wrong doing) and the mens rea (guilty intent) on the part of the accused.
From the provision in section 75, it appears to me that the act of inscription of those words and emojis and posting it on social media platform constitute the physical wrong doing on the part of the accused. As provided in section 17(4) it is immaterial whether a threat or offer is conveyed to a person by words, or by writing, or in any other manner, and whether it is conveyed directly, or through any other person, or any other manner. So with regards to the present case, the threat was in writing and published on social media so it will suffice if any of the creator’s contact list sees it and conveys it to the victim or the victim sees it him or herself or even a relative of the victim sees it and conveys it to the victim.
For the intent, as the law states, with intent to put that person in fear of death, the relevant question to pose is whether the victim will be put in fear of death upon seeing his or her picture with that inscription. In my opinion, apart from the nervous shockand emotional distress the victim will go through, the victim is likely to be put in fear of death sooner than later. So the question of intent may be summarized in the rhetorical question that what was the death hoax creator thinking of or what did he or she seek to achieve from that act apart from causing the victim to believe he or she will die sooner or later? In my view therefore, the requisite mens rea in sec 75 would be established satisfactorily as the creator intended to put the victim in fear of death without any lawful justification.
It is therefore humbly submitted that a death hoax creator may be guilty of the offence of threat of death contrary to section 75 of Act 29.
Now to the civil aspect. To begin with, the 1992 Constitution guarantees the individual’s right to privacy of his home, property, correspondence or communication. Article 18(2) of the Constitution, 1992 is to the effect that no person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedom of others. Clearly, the constitution seeks to protect the individual from unlawful interferences that may arise either from the state or a fellow individual.
The Law of Confidentiality
For the purpose of this article, the writer will discuss the law on Confidentiality which is under Intellectual Property Law. I must say, it is not out of place for a reader to have thought that the law of Confidentiality encompasses only commercial and industrial information which have economic value of some kind. Well, I am glad to let you know that the law of Confidentiality encompasses both commercial and industrial and non-commercial or industrial information as well.
The case of Duchess of Argyll v Duke of Argyll illustrates this point. The facts are simple. The Duchess was divorced by the Duke on grounds of adultery. She later brought an action to restrain her former husband from revealing in newspaper articles aspects of her private life which she had disclosed to him during their marriage. She also sought to prevent the editor and owners of a newspaper from publishing any such information already communicated to them. The decision of the court is equally simple. An interlocutory injunction was granted to protect against the revelation of marital confidences, and the newspaper to which the Duke had communicated such information about the Duchess was restrained from publishing it. The concept of confidentiality was applied so as, in effect, to protect the privacy of communications between a husband and wife.
The next thing the reader must know is that the information can come about through observation, thus, a situation where nobody communicated to you or the defendant might have obtained the information surreptitiously. So the information need not be communicated directly to the defendant. The case in point is Prince Albert v Strange. In that case, the Queen and Prince Albert made etchings for their own amusement intended only for their private entertainment. Someone surreptitiously made some additional prints form the etchings, which came into the hands of the defendant who intended to display the prints in an exhibition. Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. It was held that the relief would be given against the defendant even though he was third party.
This case appears to be on all fours with the current case. The only difference perhaps, is that in the present case the death hoax creator posted the picture on her whatsapp status whilst in the Prince case (supra), Strange intended to display the sketches at an exhibition. Now, for a plaintiff to succeed in an action for breach of confidence, the plaintiff must establish three (3) elements. They are that, first, the information must be confidential in nature, secondly, it must have been disclosed in circumstances imputing an obligation of confidence and lastly, that there has been an unauthorized use of the information to the detriment of the plaintiff. The authority for this proposition is Coco v Clark.
APPLYING THE LAW OF CONFIDENTIALITY TO PRESENT CASE
Applying the law on confidentiality to the present case, firstly, an individual’s picture is an information that can be said strictosensu to be very confidential in nature. They are usually kept in our phone gallery or shared with our friends and family onsocial media. In this case, the picture was used as her profile picture and the defendant surreptitiously obtained it. That leads us to the next requirement which says that the information should have been imparted in circumstances imputing an obligation of confidence on the defendant. Obviously, a person who has surreptitiously acquired another’s picture from her whatsapp profile ought to know that the person is only sharing with her family and friends in her contact list. Lastly, that there has been unauthorized use of the information. In the present case, the defendant has inscribed on the image words and emojisthat are likely to bring contempt to the victim and cause shock and nervous shock to family and friends of the victim. This obviously amounts to an unauthorized use of the information. On the issue of publication, it is submitted that just as in Law of Tort where communicating to a third party suffices, under the law of Confidentiality, disclosing to third parties on a reasonable scale like that of a person’s whatsapp list suffices.
It is submitted that the remedies appropriate for the present case are injunction and damages. The injunction would lie to prevent the defendant from circulating the picture to the people in her contact list and to also compel her to remove from the public domain any such information. Where injunction is too late, damages may be available to compensate the victim for the pain and suffering she has been through. However, since the two remedies can be sought in court, the victim is humbly advised to seek these two remedies if she intends to bring the action under the Law of Confidence.