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The Law Of Privacy In England And Wales Part 6


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18 June 2008

Whilst the Court of Appeal decision in Murray may not have provided the clear and concise guidance many might have hoped for, it did add to an increasing body of case law in this area.  This week, in an attempt to draw some practical guidance from these cases, we look specifically at the issues of trivial disclosures and the publication of photographs taken in public.

Privacy And Trivial Disclosures

The case of Murray once again gave the courts the opportunity to consider the English law position on whether or not the disclosure of trivial (or anodyne) private information will attract protection.    

This area has previously highlighted the different approaches adopted by the developing English law and that emanating from Strasbourg.  It was considered that there may be a conflict between the approach adopted in Von Hannover when the issue of triviality was apparently not considered relevant and the approach of the English courts when dealing with the “misuse of private information” which tended to first look at whether the information in question was too trivial to qualify for protection.

In attempt to reconcile these differences, Mr Justice Patten (when deciding the Murray case at First Instance) focused on Mr Justice Eady’s trial judgment and the subsequent Court of Appeal judgment in the McKennitt case.  The pronouncements of Lord Justice Buxton were highlighted with the judge noting “what is, I think, important about that decision [the Court of Appeal in McKennitt] is that although accepting the wider interpretation of Von Hannover Buxton LJ did not consider that this invalidated Eady J’s conclusion that the more trivial information in the book … did not qualify for protection.  He clearly considered there must remain a category of cases involving innocuous, unimportant and unremarkable events, which although private in one sense do not necessarily qualify for protection”.

In McKennitt Mr Justice Eady went through each item of information complained of and distinguished between what he considered to be anodyne or trivial information (and therefore not protected by Article 8) and information which seemed to rise above this threshold.  For instance, an account of a shopping expedition was a trivial disclosure and not protected.  The book’s description of the claimant’s house in Ireland was “relatively trivial” but protected because it was an “intrusive description of a person’s home.”

When the McKennitt case went before the Court of Appeal, the court said it was “obvious” that events in a person’s home (including, by implication, even trivial events) cannot be lightly intruded upon.  The Court’s attention was drawn (albeit after argument had closed) to the House of Lords’ decision in a non-media case concerning child support.  In M v Secretary of State for Work and Pensions,(1) Lord Walker pointed out that interference with private life had to be of some seriousness before Article 8 was even engaged.

However, whilst this perhaps conveniently side-stepped the issue, this interpretation does sit rather uncomfortably with the decision of the Strasbourg court in Von Hannover.  There all the “information” in question was trivial but still protected (see below in relation to photographs).  The issue did not directly arise, and was not apparently pressed by the German government.  Even though the information (including the photographs) could be construed as trivial, their trivial nature would have helped the court conclude that they added little to a debate of general interest.

The issue of whether or not the photographs of David Murray disclosed only trivial information was not directly discussed by the Court of Appeal although the whole judgment was related to whether or not the Claimant’s Article 8 rights were engaged.  They concluded that there was at least some argument they were and did not seem to consider that an innocuous photograph of a street scene will disclose only trivial information.  The position now seems to be that it will always depend on the circumstances and one must consider the various factors which they set out. 

Photographs in Public

Prior to the Court of Appeal’s decision in Murray, the difference between the ECHR and English approach in this area was marked.  In Von Hannover, the ECHR rejected the argument that there should be no restriction on the publication of photographs taken in a public place.  The right to privacy could arise even when the person seeking protection was in a public street.  The Court held that there is “a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.”  The Court was more interested in the idea that people should have the right to a private life away from their public role than exactly where the photographs were taken.  The spatial argument put forward by the German government was not accepted.

Despite this the English courts had previously taken a different approach.  As we have seen with Mr Justice Patten in the Murray case, the courts seemed reluctant to fully follow the Von Hannover decision.  Mr Justice Patten had noted the position in Von Hannover was different from the stance of the House of Lords in Campbell.  In that case, the photograph was arguably the element upon which the whole decision rested.  It showed Naomi Campbell emerging from a building, where a Narcotics Anonymous meeting had taken place, onto the Kings Road (i.e. she was on the public highway).  The photograph did not show anything which would betray the fact that she had just left a meeting of Narcotics Anonymous; she was not outside a clinic or hospital for instance, though it was taken surreptitiously with a long lens.

Lord Nicholls thought the photograph added nothing of a private nature and noted that Ms Campbell had not complained directly about the taking of it.  Lord Hoffman thought that people could not object to being photographed in the street, but that publication of such a photograph where it showed the individual in a state of embarrassment or distress may infringe their right to privacy.  Lord Hope considered that the real issue was whether the publication of the contents of the photograph would be “offensive” before noting that the Campbell photograph was not a street scene in which she happened to appear but was taken deliberately and in secret thereby constituting a gross interference with her privacy.  Baroness Hale stated that just because a photograph was taken covertly did not make the information conveyed automatically confidential; “the activity photographed must be private.”  Someone popping out for a pint of milk and being photographed would not have had their privacy infringed.

But the only photographs before the Strasbourg court in Von Hannover were those relating to the Princess going about her daily life, perhaps the continental equivalent of popping out for a pint of milk.  These all gave rise to an expectation of privacy under Article 8.

Perhaps the explanation for these differing approaches was rooted in what the Strasbourg Court construes as “private” as opposed to the English courts.  Whilst the Strasbourg Judges are happy to find that anything other than a person’s “public” role (which in practice must mean official position) is private, the English courts, particularly in Campbell, Elton John(2) (see below), and Murray (at First Instance), looked at the photograph and judged whether it was conveying private information(3) by asking whether the person was engaged in a private act.

Von Hannover suggested that Article 8 protects more than the English courts had been prepared to accept.  For example, Mr. Justice Eady denied an application by Sir Elton John to enjoin publication of a photograph of him standing in the street before entering his London home.  The photo was not in any way related to his official functions (which presumably mean his role as an entertainer and ambassador for certain charities).  Indeed, perhaps his lack of an “official function” in the political or governmental sense would be thought by some to mean that publication of such photographs should be particularly frowned upon as there could be no public interest in their publication.  But Eady J was not prepared to grant Sir Elton an injunction.  Why was this?  It seems he was following Campbell and the views expressed by Baroness Hale.  Another possibility is that this case related to only one photograph whereas Von Hannover was concerned not only with a series of photographs but also a background of continued harassment by the paparazzi.  This seems to have reached the point where the Princess could not even go about her life without press intrusion interfering, making any refusal to protect her Article 8 rights seem much more serious.

However, the idea floated in the Elton John case that Von Hannover can be distinguished because of the element of media harassment in the case is no longer sustainable.  That issue was not the central part of the decision in Von Hannover and did not feature at all in subsequent related ECHR cases.  In Sciacca v Italy, for example, the Court held it was a violation of Article 8 for police to leak a suspect’s identity photograph to newspapers leading to its publication.  It was accepted by the Strasbourg court that the principles of Von Hannover relating to photographs and their private nature could exist without the media intrusion elements.  Referring specifically to Von Hannover, the Court stated:

    “Regarding whether there has been an interference, the Court reiterates that the concept of private life includes elements relating to a person’s right to their picture and that the publication of a photograph falls within the scope of private life.  It has also given guidelines regarding the scope of private life and found that there is: ‘a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life.’”  

 Sciacca v Italy, ECHR Application no. 50774/99 (2005) Para. 29.

Furthermore this point was dismissed by the Court of Appeal in McKennitt where Lord Justice Buxton stated (at [41]) “While it is correct that there is reference in the judgment of the EctHR to media intrusion, it is not possible to say that the general statements of principle set out in §38 above [setting out the decision] are so limited.”

One would have thought therefore, prior to the Court of Appeal decision in Murray, that photographs taken of celebrities or public figures in public which do not show the subject engaged in an activity giving rise to an expectation of privacy would not be protected by Article 8.

Mr Justice Patten’s judgment in Murray did leave the press and publishers in an awkward situation however.  It seemed to suggest that people simply going about their business in the street and not engaged in any private activity as such (i.e. popping out for a pint of milk) would not have a reasonable expectation of privacy.  Conversely, people engaged in a private activity in a public place, such as spending time with their family in a park, might have a reasonable expectation their Article 8 rights would be engaged.  This seemed sensible albeit that it would be very difficult to apply these rules in practice (for instance, what about photographs of a family on their way to the park). 

However, it seems the goal posts have moved again with the judgment of Sir Anthony Clarke in the Court of Appeal Murray decision.  Arguably, the Appeal Court seemed to bring the focus back on whether there had been a campaign of harassment stating:

“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.”

Not only does this suggest that a level of harassment may be relevant, but it also seems to suggest that Baroness Hale was referring to a one-off incident when she made her famous “pint of milk” comment (i.e. no harassment).  However, it could well be argued that she was merely using that example as an example of an innocent (and non-private) every day activity.

To confuse matters even further, after these comments Sir Anthony Clarke went on to say that not enough emphasis was placed on the publication of the photograph as opposed to the circumstances surrounding the taking of any photograph.

The test now seems particularly vague but photographs will be no different from any other information disclosed in that the court will ask whether Article 8 is engaged.  They will focus on “what a reasonable person would feel if she was placed in the same position as the claimant and faced with the same publicity”.

For now though, publishers should be mindful of the fact that photographs can be problematic.  Photographs where children are the focus due to their famous parents are almost certain now to be considered very high risk.  Where the child is incidental in any picture (i.e. the accompanying article is not related to them but perhaps their famous parent – not the case in Murray where the piece was about parenting) then publishers should consider using a photograph without the child or at the very least pixellating the child’s features.  Photographs taken of public figures on private property (where they could argue they enjoyed an expectation of privacy) should also set alarm bells ringing.  This will include photographs taken by members of the public (perhaps on camera phones) as well as long lens photography.  Private gardens, beaches and closed film sets will all be risky and even hotels, restaurants and nightclubs may be considered private in this regard, notwithstanding they are open to the public in certain circumstances.  Finally, care should be taken when the subject matter in the photograph is engaged in a private or embarrassing act, such as an embrace, or only partially clothed, whether or not they are in a public place.  Regardless of the law, this could aggravate the potential claimant increasing the risk of a complaint. 

Next week we continue to look at what guidance the increased body of case law has provided publishers.


   1. [2006] 2 AC 91 at Para [81]

   2. John v Associated Newspapers Ltd [2006] EWHC 1611 (QB); [2006] E.M.L.R. 27.

   3. Private information in the sense of information which a reasonable person would consider should not be disclosed.

© 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 [] 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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