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Privacy but at what cost


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Dr Neil Murray and Joanne Murray are the parents of David Murray. Mrs Murray is JK Rowling. David is a minor and was born on 23 March 2003. On Monday 8 November 2004 the well known photography agancy BPL took a colour photograph of the family walking in a high street which was subsequently published in the Sunday Express magazine on 3 April 2005 ('the Photograph').

On 24 June 2005 proceedings were issued in David's name through his parents as his litigation friends against the publishers of the Photograph, Express Newspapers Plc as first defendant and against BPL as second defendant. The action against the first defendant was settled leaving BPL as the sole defendant. In the action David asserts an infringement of his right to respect for his privacy contrary to article 8 of the European Convention on Human Rights ('the Convention'). He also puts his claim under the Data Protection Act 1998 ('the DPA').

At the first hearing BPL was successful in its application for an order striking out the claim under CPR 3.4 or for summary judgment under CPR 24. By an order dated 7 August 2007 the judge struck out the claim and gave judgment for BPL. An appeal was lodged on the grounds that the case raises an important point about the relationship between the decision of the House of Lords in Campbell v MGN [2004] UKHL 22, [2004] 2 AC 457 and that of the ECtHR in Von Hannover v Germany (2005) 40 EHRR 1. ).

The Photograph shows Mrs Murray walking alongside the buggy and shows David's face in profile, the clothes he was wearing, his size, the style and colour of his hair and the colour of his skin. It was taken covertly by a photographer using a long range lens. Neither David, who was about 19 months old, nor his parents were aware that the photograph was being taken. His parents were not asked for their consent to any of the photographs being taken.

The issue for the Court was centred on the degree of protection which someone who is well known or of public interest is entitled to in respect of their private family life. The reality of the case is that the Claimant's parents seek through their son to establish a right to personal privacy for themselves and their children when engaged in ordinary family activities wherever conducted."

The appeal was successful as the Judge focused his reasoning largely on the parents and not the child.

"In our opinion in those paragraphs the judge focuses too much upon the parents and not enough upon the child. The child has his own right to respect for his privacy distinct from that of his parents. While it is true that a small child of as little as 19 months is likely to be oblivious of the taking of a photograph of him (or her), at any rate if taken at long range, and there is no suggestion that David suffered distress or harassment as a result of the taking (or indeed publication) of the Photograph, we do not think that it is quite right to describe the issue of principle as being "whether the Claimant who is not a public figure in his own right but is the child of one, is entitled to protection from being photographed in a public place even where a photograph shows nothing embarrassing or untoward but in which he is shown depicted with his parents ."

Moreover, we do not agree that it is artificial for the parents to bring the action in the name of the child".

In the Appeal Court's 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 previous judge thought.

Michael Coyle is a solicitor advocate who specialises in information technology law and intellectual property law.

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2008-05-11 18:44:11 in Legal Articles

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