Derek Achong
Senior Reporter
The Court of Appeal has raised the possibility of citizens being able to pursue lawsuits against fellow citizens for breach of their privacy.
Appellate Judges Mark Mohammed, Maria Wilson and James Aboud considered the issue as they were called upon to adjudicate over an appeal by two teenagers, who were caught locked in a toilet at a shopping mall in Barrackpore before school.
While the appeal panel ruled that a High Court Judge was wrong to dismiss aspects of their case against the property owner Krishen Basdeo, dealing with false imprisonment and battery, it found that they were unable to pursue a case in tort for breach of their privacy.
Justice Wilson, who wrote the panel’s judgment, noted that citizens are only allowed to “vertically” exercise their constitutional right to privacy against public authorities and agents of the State; “horizontal” application between citizens is not recognised in law locally.
She stated that the duo’s lawyer, Lee Merry, raised compelling arguments requesting judicial intervention based on rapid technological advancements leading to the swift dissemination of information in cyberspace.
“We cannot simply ignore this new ecosystem,” she said.
“Instead, it ought to compel Parliament and/or our courts, most likely the latter, to consider seriously the recognition of the law of right to privacy between individuals in order to ensure that individuals have an available remedy for infringement of their rights by other individuals,” she said.
However, Justice Wilson noted that the duo’s case was inappropriate as they did not have permission from the landlord or a tenant to use the toilet.
“The situation would have been very different if they had the permission of the seamstress to be in the toilet,” she said.
“It is no different from an intruder entering one’s backyard and claiming that they have a right to privacy if you take their photo,” she added.
The case stemmed from an incident at Basdeo’s building in October 2018.
Basdeo allegedly caught the teens locked in a toilet and a man who accompanied him recorded them while they were being interrogated by him.
The mothers of the 17-year-old male student and the 15-year-old female student, who were attending the Barrackpore East Secondary School, filed the case as the recording was shared on social media.
In 2020, High Court Judge Frank Seepersad stated that the teens’ claim that the 17-year-old male student was helping the 15-year-old female student, who was allegedly suffering nausea due to her menstrual cycle, was implausible.
“I found the evidence of both claimants to lack credibility and I find that it was more plausible to conclude on a balance of probabilities that these two young people were engaged in a romantic tryst in the bathroom,” Seepersad said.
He went on: “Clearly, these young people were young and restless and were pursuing their romantic endeavours in a public environment in a private bathroom.”
In deciding the appeal, Justice Wilson ruled that there was no evidence that proved that the teens were engaged in sexual activity.
While she found they were trespassing in the toilet, Justice Wilson ruled that Basdeo did not have the authority to detain them under the Trespass Act.
She also found that Basdeo committed a battery on the male teenager by pushing him when he was trying to leave the toilet.
She ordered $30,000 in compensation for the male student and $25,000 for the female student.
Justice Aboud delivered a dissenting judgment in which he suggested that he would have ordered slightly more compensation for the teens based on Basdeo’s actions towards minors.
“The minors were vulnerable, in a position of weakness, and subservient to his aggressive behaviour and vulgarities,” Justice Aboud said.
The teens were also represented by Vanita Ramroop, while Che Dindial represented Basdeo.
