Secret lover, leaked nudes and a Sh2.5m court payout

This story has significance for readers across Kenya and beyond.

Possession of another person’s intimate images comes with a duty to protect them, and failure to prevent their unauthorised circulation can result in constitutional liability even where a victim cannot produce a direct digital trail showing who uploaded them, the High Court has ruled.

While awarding Sh2.5 million to a married woman whose intimate photographs spread online after being leaked by her ex-lover, the court said a person who takes and controls another’s intimate photographs has a duty to prevent their disclosure.

The court ordered Mr GH to pay Ms DN the amount after finding him responsible for her nude pictures that circulated online, on his social media platforms, including WhatsApp and Facebook, three years ago.

Though Ms DN could not link Mr GH to the platforms that published the photos, she demonstrated that he was in possession of the materials taken during their relationship.

The court found that the man facilitated the circulation of the photographs, either directly, indirectly or recklessly, and violated Ms DN’s constitutional rights to dignity and privacy.

“Accordingly, the court finds that, on a balance of probabilities, the respondent was responsible for or facilitated the circulation of the petitioner’s nude photographs, either directly, indirectly or recklessly, thereby violating her rights to dignity and privacy under Articles 28 and 31 of the Constitution,” it said.

According to the petition, Ms DN is married and has two children, while Mr GH was known to her and they had met on several occasions privately and publicly.

She said friends, relatives and her husband received the images, exposing her to ridicule.

She alleged that he took her nude photographs without her consent and shared them on WhatsApp and Facebook, where they were widely circulated. She said she was humiliated on her Facebook page and WhatsApp status, prompting her to deactivate both accounts.

Ms DN said she received calls and screenshots of the images, faced ridicule and humiliation and sought treatment and counselling due to the trauma. She asserted that she has suffered severe psychological and mental distress, sunk into depression, and even contemplated suicide.

Broken marriage

She claimed that the photographs were also sent to her husband, leading to the breakdown of her marriage. She went to live with her parents along with her two children when her marriage broke down. Efforts by her family, relatives, elders, and clergy to reconcile her with her husband were unsuccessful, she said. MS DN supported her case with statements of three witnesses.

The court admitted the social-media screenshots despite the absence of a certificate required for electronic evidence, relying on testimony, surrounding circumstances and admissions to establish their authenticity.

Mr GH denied circulating the images. He said he first learnt they were circulating after his mother contacted him on WhatsApp on March 23, 2023.

He produced records showing hospital admission from March 15 to 17 due to illness and said it was impossible for him to have circulated the photographs during that time.

He also claimed that the images depicted both himself and the petitioner, and urged that if he had shared them, he would have edited out his own images to avoid personal embarrassment.

Mr GH maintained that the petition was unfounded, and that he too had suffered embarrassment, public ridicule, and mockery.

In its judgment, the court accepted that he was hospitalised but found the records did not show that he was incapacitated or unable to use his mobile phone.

“Hospitalisation, without evidence of incapacitation or unavailability of devices, does not conclusively negate the possibility of digital activity,” the court said.

It found that Mr GH had not given a credible explanation of how photographs in his possession reached the public domain and held that their circulation violated the petitioner’s constitutional rights to dignity and privacy.

The decision puts into sharp focus the difficult evidentiary questions surrounding intimate images shared online, where photographs can be repeatedly forwarded, saved and republished without leaving an obvious trail to the original source.

The screenshots had no certificate required under Section 106B(4) of the Evidence Act. The court nevertheless admitted them after Ms DN explained that she obtained some from her phone and others from messages forwarded by friends and relatives.

The court said M GH did not dispute that the photographs depicted him and Ms DN, or that he had possessed them. It found the images and screenshots genuine and relevant.

The court held that the missing electronic certificate was not fatal “in the peculiar circumstances of this case”. It said authenticity had been established through testimony and supporting material.

Screenshots showed circulation from a page called “Leaked Videos in Kenya”, but did not directly identify Mr GH’s account as the source.

The court found that he had not provided a credible explanation for how intimate material in his possession entered the public domain.

“The respondent was responsible for or facilitated the circulation of the photographs,” the court concluded, finding liability whether dissemination was direct, indirect or reckless. It also restrained from publishing, sharing or distributing the photographs.

The decision builds on earlier privacy rulings, where the High Court held that publication of private photographs without consent violates Article 31 of the Constitution, which provides that every person has the right to privacy.

In that 2016 case, the court also held that taking nude photographs does not by itself waive privacy rights where there was no consent to publish them.

In another High Court case, the court rejected the argument that posting an image on Facebook for one purpose amounted to consent for others to use it.

Ms DN’s case adds an evidentiary dimension to privacy jurisprudence as the court accepted electronic material without the usual certificate because surrounding evidence established its authenticity.

It also placed responsibility on the person who possessed the intimate material to explain how it reached the public.

The judgment states that such possession created a “heightened duty of care to prevent unauthorised disclosure”. A victim who cannot identify the precise account that uploaded intimate material is not necessarily unable to prove a privacy violation.

Reporting originally appeared via Nation Africa. Read the full source for additional context.