Krispus Ayena privacy case: A win for revenge porn victims

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In a 22-page ruling issued by email on the 29th May 2020, Hon. Lady Justice Patricia Basaza-Wasswa found that by publishing nude photos and articles of prominent lawyer Counsel Krispus Ayena, the Pepper Publications Ltd – publishers of tabloid newspapers Red Pepper and Kamunye infringed on his fundamental rights and freedoms guaranteed under Articles 24 and 27 of the Constitution and that these publications were not justified.

The High Court judgement, to many, represents a landmark in the fight against the publication of  secret intimate photographs of people against their wishes, a phenomenon dubbed- revenge porn.

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 So what is revenge porn?

There is no generally agreed definition of revenge porn. However, it is agreed that it involves the publication of sexually explicit photos and videos by former lovers- rejected ones in particular or their agents as the word “revenge” connotes- without the permission of the individuals depicted in them and sometimes accompanied by disparaging descriptions and identifying details, like where the person(s) live and work.

The Ayena case is only one of the myriad of occasions in Uganda where tabloid newspapers and individuals have exploited the viral nature of their publications to engage in emotional and reputational destruction of their targets-mostly public figures. Revenge porn has exhibited high chances of harm because photographs have a greater impact on people than do written words, their capacity to shock exceeds that of the language.

Krispus Ayena

Through their lawyer, Counsel Isaac Ssemakadde, Mr. Ayena Odongo (pictured) and his wife, Marris Ayena (‘the applicants’) brought the application against the tabloids arguing among others that the latter’s actions constituted a violation of their and their children’s human rights ( right to family tranquility)/ Courtesy photo

So what happened?

The Pepper Publications Ltd, the publishers of tabloid newspapers,The Red Pepper and Kamunye in 2016 published several true nude photos and articles of Krispus Ayena Odongo (Dominic Ongwen’s Lawyer in the ICC) having sexual relations with an unnamed woman, in a bedroom-like setting against his wishes.

These publications were accompanied by disparaging and sarcastic headings like ‘Top MP filmed bonking babe’, ‘MP Ayena looks dazed and knackered after the sex marathon’ among others. Through their lawyer, Counsel Isaac Ssemakadde, Mr. Ayena Odongo and his wife, Marris Ayena (‘the applicants’) brought the application against the tabloids arguing among others that the latter’s actions constituted a violation of their and their children’s human rights ( right to family tranquility).

In defence, the tabloids, through their lawyer Mr. Mutabingwa Maxim, had sought to avoid liability for the violations by arguing the freedom of expression and of the press guaranteed by the Constitution permitted them to publish the nude pictures and there was nothing illegal about it.  This has always proven to be a common hurdle in the fight against revenge porn, more so in Uganda.

Justice Basaza-Wasswa, however, dismissed the argument, holding that media freedom did not mean freedom to publish all sorts of content.

” Clearly, the respondent enjoys the rights and freedoms of the press and other media as guaranteed under Article 29 (1) (a) of the Constitution and Section 2 of the Press and Journalist Act. However, those rights are not limitless nor boundless ” She said.

” Can the press or other media be allowed to publish what they wish, however pornographic, subversive, prejudicial to others, xenophobic, or otherwise? The answer is No”

Finally, ruling in favour of the former Oyam South MP, a sum of 75m Uganda Shillings was awarded in compensation for violating his privacy and dignity.

The ruling brings home a victory on the side of revenge porn victims who have for long been sidelined by the absence of specific laws governing the issue. The 2014 Anti Pornography Act and the little known Anti-pornography committee have been known to hunt and hound the victims rather than target the perpetrators who get away scot-free.

From causing mental and economic distress to grossly invading the privacy of victims, revenge porn has continued to present peril to Ugandans-mainly female- in Uganda. The perpetrators have always taken the ‘freedom of expression’ in defence of any kind of legal action taken against their actions. The recently delivered Krispus Ayena judgement comes in handy in cracking down on this phenomenon of revenge porn that countries like Uganda have experienced in recent times.

It’s express distinction of the limit of freedom of expression in such circumstances and is indeed a win for revenge porn victims.


 

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