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The Law Of Privacy In England And Wales Part 5

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11 June 2008

Last week we looked at the various decisions of the Court of Appeal and High Court which had helped shaped the law in this area, one of which was Mr Justice Patten’s judgment in the case of Murray v Express Newspapers.  That decision was subsequently appealed and here we examine the Court of Appeal’s recent re-examination of the issues. 

On 7 May 2008 the Court of Appeal ruled that Mr Justice Patten had been wrong to decide that David Murray, the now 5 year-old son of author J K Rowling, had no prospect of success in his claim that his right to privacy had been infringed. 

The trial judge had found in favour of Big Pictures (UK) Limited (“BPL”), the photographic agency named as defendants in the action, who applied to have David Murray’s claim struck out for disclosing no cause of action.  David’s parents brought the action on his behalf as his litigation friends.

Background

Dr Neil Murray, Joanne Murray (aka J K Rowling) and David Murray were photographed in an Edinburgh street on 8 November 2004 by a photographer from BPL using a long lens.  The family were not aware that the picture had been taken, which showed the Murrays pushing David in a buggy.  The photograph was subsequently published in the Sunday Express magazine on 3 April 2005, when the family first became aware of its existence.  Express Newspapers were originally also a defendant in the action but settled before the case went before Mr Justice Patten.

The decision in this case was eagerly awaited by many as an indicator of the future development of “privacy” laws in England and Wales.  Since the landmark case between Naomi Campbell and the Mirror newspaper, English law in this area has developed considerably but still seemed some way off the approach approved by the European Court of Human Rights (‘ECHR’) in the Von Hannover case involving Princess Caroline of Monaco. 

The ECHR had ruled that individuals (including those in the public eye) had a right to a private life away from their public role, and that meant they should not have that sphere of their life intruded upon.  The photographs of the Princess had included several of her going about her everyday business in the street, and as such they disclosed no information that could be considered to be “private”.  Nevertheless, the Court still found in her favour on the basis that she had a reasonable expectation of privacy at the time the photographs were taken.  This could be contrasted with the pre-Campbell approach of the English courts which had previously looked at whether the information in question, in this instance a photograph, actually discloses any confidential or private information.  It was thought that if a photograph merely showed a person in the street (and not engaged in an embarrassing or private activity) then the law would not protect them. 

The Test

The test applied by the courts in these cases is in two parts.  Firstly they must look at whether Article 8 of the European Convention on Human Rights is engaged at all (i.e. did the individual have a reasonable expectation of privacy in the circumstances) and then, if this hurdle is cleared, whether the Article 8 right to privacy is defeated by the Article 10 right to freedom of expression (in other words the Court must balance the strengths and weaknesses of these respective rights). In his judgment, Mr Justice Patten had ruled that David Murray’s case had no prospect of success as a picture of him in the street did not engage his Article 8 rights, as he had no reasonable expectation of privacy in the circumstances. Thus he fell at the first hurdle.  The Court of Appeal, with judgment delivered by Sir Anthony Clarke, the Master of the Rolls, disagreed.

The Judgment

There were a number of reasons why the Court of Appeal disagreed with Mr Justice Patten.  Many of these related to the fact that the claimant was a young child (albeit with the action being brought on his behalf by his parents).  It was considered by the Appeal Court that this was not sufficiently recognised by the trial judge, who treated the action as if it were an attempt by J K Rowling to safeguard her own privacy via the back door. The Court of Appeal said that “David may have a reasonable expectation of privacy in circumstances in which his famous mother might not”. 

The Appeal Court also said, rather unhelpfully, that one cannot say whether taking a photograph of a child in a public place when out with his parents would or would not engage Article 8 - rather “it all depends on the circumstances”.  Mr Justice Patten’s approach had depended “too much upon the consideration of the taking of the Photograph and not enough upon its publication”. 

The Court of Appeal further stated:

“This was not an isolated case of a newspaper taking one photograph out of the blue and its subsequent publication.  This was at least arguably a very different case from that to which Baroness Hale referred in her well-known example of Ms Campbell being photographed while popping out to buy the milk.  The correspondence to which we have referred shows that a news agency, a freelance photographer and two newspapers had photographers outside the Murrays’ house in that period before publication of the Photograph and a schedule exhibited to the particulars of claim shows that this was not an isolated event.”

However, it is not clear if this is what Baroness Hale actually meant when she referred to someone popping out for a pint of milk.  Rather than suggesting that such a person was not the subject of a continued campaign, she could well have meant that the subject matter of the photograph was completely trivial or anodyne, as was the case here.  Furthermore, this seems to be taking the focus back towards considering whether the subject was the centre of a campaign of harassment, something many have ceased to recognise as a relevant factor. 

Publication or Papparazzi?

These comments also raise some interesting points as to when any infringement may occur.  As stated above, the Appeal Court felt that not enough emphasis was placed on the publication of the photograph, and too much on its taking.  However, BPL did not directly publish the photograph (though presumably profited from its publication).  Also, in considering that BPL were aware of its value, the judgment stated “it seems to us to be likely that BPL was fully aware of the potential value of taking and publishing such photographs.  The Photograph could, after all, have been published with David’s features pixelated out if BPL had wished”.  This raises an interesting point.  If the real wrong comes from the publication (as suggested) rather than from the taking of the photograph then would pixellation (preventing identification) always defeat such a claim?

The Tests

In the same way that libel lawyers are supposed to recognise “responsible journalism” when they see it, the Court stated “the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all circumstances of the case”.  The Court stated that the tests include:

  • The attributes of the claimant;
  • The nature of the activity in which the claimant was engaged;
  • The place at which it was happening;
  • The nature and purpose of the intrusion;
  • The absence of consent and whether it was known or could be inferred;
  • The effect on the claimant; and
  • The circumstances in which and the purposes for which the information came into the hands of the publisher.

However, there is still room for uncertainty.  The Court stated that, “In our opinion it is at least arguable that David had a reasonable expectation of privacy.  The fact that he is a child is in our view of greater significance than the judge thought.” They continued, “If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent”. So far so good. Children are special and everyone acknowledges that, including the Press Complaints Commission, and children of famous parents should have no fewer rights than children of non-famous parents. 

However, the Court of Appeal also states “If the parents of a child courted publicity by procuring the publication of photographs of the child in order to promote their own interests, the position would or might be quite different from a case like this, where the parents have taken care to keep their children out of the public gaze.”  This seems to suggest the parents’ conduct will affect the child’s right to privacy, something which does not support the argument that the child’s welfare is paramount. 

Conclusion

It is clear that the starting point in such cases is whether Article 8 is engaged; “what a reasonable person would feel if she was placed in the same position as the claimant and faced with the same publicity”.  But does this case mean that Von Hannover has been accepted and privacy law extended to cover trivial and anodyne activities in a public street?  Or is it merely saying that children are special and that if J K Rowling had herself been the claimant and the child’s face pixellated the outcome would have been different?  Either way, the solicitor for the 5 year old claimant said of the decision “I am sure an overwhelming majority of the media will welcome it”.  That, and where the law is headed, remains to be seen.

Whilst this decision may not have provided the clarification or guidance many publishers had hoped for, it forms yet another chapter in the growing body of case law shaping this area of practice.  Having reviewed the cases, next week we begin to look at what guidance they provide and the position as it now stands for publishers potentially affected by the evolving legal issues.

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at June 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.


About the Author

Davenport Lyons [www.davenportlyons.com] is an international business law firm based in the West End of London. The firm has an excellent reputation in areas spanning corporate to property, defamation to intellectual property, music to film finance and digital rights to sport.


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Article Published/Sorted/Amended on Scopulus 2009-03-25 19:25:02 in Legal Articles

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