Peter A Clarke

In Australia the few notable privacy related cases have involved the use of sex tapes, recordings of former partners involved in intimate sexual conduct.  This was the subject of the claim in the Victorian Court of Appeal decision of Giller v Procopets [2008] VSCA 236 and the Western Australian decision of Wilson v Ferguson [2015] WASC 15 which I posted on here. In both of those cases the actual filming was consensual but the subsequent use of those recordings by rejected male partners was not.

In Victim of Tyrone May sex tape seeks damages the Australian reports that a woman has commenced action against Tyrone May for illegally filming her having sex with him and then disseminating those recordings without her consent.  According to the article the recordings went viral through Facebook messenger and SMS text and ended up on a pornographic website, Porn Hub, reputedly the largest adult website in the world.

Interestingly the woman is suing for “breach of privacy”, presumably alleging there is a tortious cause of action. If successful that will set precedent and be welcome.  At the moment privacy claims languish in the realms of equity, specifically breach of confidence. It is unsatisfactory.

May pleaded guilty to intentionally recording an intimate image without consent.  That may complicate any defence he might ponder.

The article provides:

Two explicit videos, including one titled “Boot the slut”, were disseminated without her consent. They reached “thousands” of people and ended up on pornographic websites.

The ordeal has left her traumatised including suffering depression and anxiety.

Brydens Lawyers are acting on her behalf and she is seeking compensation in the Supreme Court of NSW — which could reach a six-figure sum — after the Penrith player allegedly sent the intimate videos via Facebook messenger and SMS text to men also involved in the encounter. The vision then went viral and she claims this subjected her to “public ridicule” and “hatred”.

The Australian has obtained the Statement of Claim which details that the sex videos have ended up on adult websites, Porn Hub and xvideos.com, as well as being forwarded on to acquaintances of the woman.

On Wednesday it also emerged that another NRL footballer had become embroiled in a sex tape incident, this time from the Parramatta Eels. The NRL integrity unit is now investigating an Eels player after he was filmed having sex with a woman in a toilet. The woman is considering her legal options. The player said he was unaware the incident was being filmed.

Meanwhile, May pleaded guilty in November last year to four counts of intentionally recording an intimate image without consent. He narrowly avoided jail and is currently serving a three-year community corrections order.

Brydens Lawyers senior associate Wes Ranson is acting on behalf of the woman in the civil action and the matter is to be heard next month in the Supreme Court.

The Statement of Claim also details that the woman has been “greatly injured in her character and credit and in her personal, business and professional reputation and has been brought into public hatred, ridicule and contempt.”

She has suffered “psychological injury” as well as anxiety, post traumatic stress disorder and depression because of May’s actions in illegally filming and allegedly distributing the sex tapes “between 25 May 2018 and 4 March 2019”.

The document reveals that “the Plantiff’s hurt and harm has been increased by her knowledge that: she did not consent to being filmed during the Intimate Encounter” and “she did not consent to any images of the Intimate Encounter being show to or shared with any person.”

The Statement of Claim also says that May “did not seek her consent to being filmed during the Intimate Encounter” and that the videos have been “placed upon the internet at pornographic websites where they can be viewed and downloaded by thousands of people, where they still remain.”

It also lists individuals who received the video and who are known to the victim, showing the sex tapes’ reach as well depth of hurt caused to her.

The document also states that May “has failed to apologise when requested on 27 May 2020”.

Brydens Lawyers principal Lee Hagipantelis says the woman is suing the Panthers star for aggravated damages for defamation, breach of privacy, personal injury damages, pre-judgment interest and costs.

Hagipantelis said the ‘breach of privacy’ is unprecedented area for a defendant to be sued for in a case like this.

“This case shows criminal conduct has a civil consequences as well,” Hagipantelis told The Australian.

“The plaintiff is entitled to pursue civil action available to her to seek damages for the consequences of that criminal conduct.”