Children, Photographs & Privacy Rights: J.K. Rowling creates new case law

09 September 2008

Hazel Grant

The Court of Appeal has considered the privacy case brought by J.K. Rowling  in respect of photos of her young son[1]. The Court of Appeal held that it was at least arguable that publication of a picture of the son in his stroller in Edinburgh infringed his privacy and therefore a full trial should be ordered.  In doing so the Court of Appeal has made authoritative statements on the tort of misuse of private information and the relevant considerations where there may be a breach of privacy.

A reminder of the facts

Big Pictures (UK) Ltd (BPL) photographed David Murray, the infant son of J.K. Rowling, whilst he was being pushed in his push-chair along the streets of Edinburgh by his parents.  The photographs were taken with a long-distance lens and David’s parents were not informed or asked for consent.  The picture agency then sold photographs of David and these were published by Express Newspapers.  J K Rowling and her husband brought proceedings, on behalf of their son, against Express Newspapers and BPL.  Express Newspapers settled: BPL applied to have the claim struck out.

First instance decision

At first instance, Mr Justice Patten struck out the claim on the basis that the taking of the photographs did not engage Article 8 of the European Convention on Human Rights (ECHR) and if Article 8 was not engaged then there was no arguable case to be considered.

The Judge was heavily influenced by Baroness Hale’s comments in Campbell v MGM, that there would be no breach of privacy if an individual was photographed whilst she “pops out to the shops for a bottle of milk”.  In essence, in the Judge’s opinion, here was “an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy”.

In coming to this conclusion, the Judge considered carefully the decision in von Hannover v Germany, a European Court of Human Rights decision, in which photographs of a Princess Caroline of Monaco engaged with her family in sporting and family activities were held to be protected by Article 8, even though those activities were carried out in public.

However, the Judge followed Campbell as he felt able to distinguish the two decisions.  In Campbell - Baroness Hale considered day to day activities such as walking down a street; whereas von Hannover concerned activities which were part of a person’s private recreation time and intended to be enjoyed in the company of family and friends.

A further claim for damages due to breach of the Data Protection Act 1998 (DPA) was also struck out.  BPL was not registered with the Information Commissioner’s Office as a data controller and this was raised as a potential cause of action by the claimant, although there were problems in showing causation and the calculation of any damages.  The Judge followed the decision in Johnson v MDU, that damage in the DPA means ordinary pecuniary loss and David could not show this.

Court of Appeal decision

The Court of Appeal disagreed with the Judge and held that there was a triable issue, as it was at least arguable that Article 8 was engaged.  Accordingly, a full trial should be ordered.

The following points of the Court of Appeal’s judgment are of particular interest:

  • The Judge had incorrectly aligned the interests of the child with those of his parents.  The Judge concluded that the parents were trying to use the child to create more privacy rights for themselves.  The Judge also considered that the interests of the child and of the parents were indistinguishable.  The Court of Appeal disagreed with this and felt that a child of famous parents may, nonetheless, have an expectation of privacy.

  • The Court of Appeal noted the conflict between Campbell v MGM and von Hannover v Germany.  The Court of Appeal noted that, following K v Lambeth LBC, they were obliged to follow Campbell in preference to von Hannover, on the basis that Campbell is a House of Lords decision whereas von Hannover is an ECHR decision.

  • However, the Court of Appeal felt that the facts here could be distinguished from Baroness Hale’s example of buying a pint of milk in Campbell:

    • there had been a determined campaign here to obtain pictures of the Murrays.  Freelance photographers had been camped outside their house for some time; and

    • the case concerns a child, which is a differentiating factor.

  • The relevant test to be gleaned from Campbell is whether there is a reasonable expectation of privacy.  Although some of the judgments in Campbell also discuss whether publication would be “highly offensive” this is only a relevant test if it is not obvious whether an individual has a reasonable expectation of privacy and/or when one is balancing Article 8 and 10 rights.

  • The Court of Appeal noted the approach taken by the Press Complaints Commission on previous occasions, that the test is whether newspapers would include a story about a child of famous parents if the story was about a child of ordinary parents.  The Court noted that it is at least arguable that a child of ordinary parents would reasonably expect that the press would not target him and publish photographs of him.

  • The Judge had paid too much attention to the act of taking the photograph and not enough attention to the impact of publication. 

  • The Judge thought it was possible to distinguish between private acts such as going for a meal in a restaurant (which, post-von Hannover, attract protection) and acts such as going to buy a pint of milk which, following Campbell do not attract protection.  The Court of Appeal disagreed and felt that it is not possible to draw a clear distinction in principle between these two kinds of activity:
    “We do not share the predisposition identified by the Judge that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy … It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.”

  • The Court felt that David Murray’s claim for breach of the DPA should also be considered.  The Court suggested that if the publication proved unlawful under Article 8 then this would also, automatically, breach the DPA.  The Court of Appeal also noted that the Judge’s comments on the meaning of “damage” were potentially incorrect.

What are the key developments from this decision?

Perhaps most significantly, the Court of Appeal judgment provided by Sir Anthony Clarke, Master of the Rolls, reads as a privacy law text book.  It describes, in an authoritative fashion, the law on the right to informational privacy as an established right within English law.

We have the Master of the Rolls’ summary of the key principles as follows:

  1. “The right to freedom of expression enshrined in article 10 of the Convention and the right to respect for a person's privacy enshrined in article 8 are vitally important rights. Both lie at the heart of liberty in a modern state and neither has precedence over the other.

  2. Although the origin of the cause of action relied upon is breach of confidence, since information about an individual's private life would not, in ordinary usage, be called “confidential”, the more natural description of the position today is that such information is private and the essence of the tort is better encapsulated now as misuse of private information.

  3. The values enshrined in articles 8 and 10 are now part of a cause of action and should be treated as of general application and as being much more applicable to disputes between individuals as to disputes between individuals and a public authority.

  4. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.

  5. In deciding whether there is in principle an invasion of privacy, it is important to distinguish between that question, which seems to us to be the question which is often described as whether article 8 is engaged, and the subsequent question whether, if it is, the individual's rights are nevertheless not infringed because of the combined effect of article 8(2) and article 10.”

We also have a strong statement from the Court of Appeal that even innocuous activities taking place in public may be protected as there may be a reasonable expectation of privacy.

Heavy emphasis is placed on considering the circumstances of each case to decide if there is a reasonable expectation of privacy.  The fact that a child is involved may be a significant consideration in assessing whether there is a reasonable expectation of privacy.  The Master of the Rolls listed some of the key considerations in deciding whether there is a reasonable expectation of privacy:

  • The attributes of the claimant (here a child);

  • The nature of the activity in which the claimant was engaged (embarrassing or day to day activities);
    • The place at which it was happening (public or private locations);

  • The nature and purpose of the intrusion (accidental or incidental capture versus deliberate campaigns to obtain photographs);

  • The absence of consent and whether it was known or could be inferred (e.g. as here, use of a long distance lens);

  • The effect on the claimant (what distress might be caused?); and

  • The circumstances in which and the purposes for which the information came into the hands of the publisher (for example were the photographs taken to order?).

The Master of the Rolls also drew attention to a possibility that the interpretation of the word “damage” in s.13(1) of the DPA may have been incorrect given the purpose of the DPA was to enact the provisions of the Data Protection Directive.  This issue will be considered when the matter is reheard.  This is a significant issue, since at present the Judge’s interpretation (that only pecuniary loss is recoverable) is the generally held view.  (It is possible to obtain damages for distress but only where pecuniary loss is also recoverable).

So, as privacy lawyers we can look forward to another instalment with perhaps more on key issues in privacy law, the rights of children compared to their famous parents, the interpretation of the DPA including the meaning of damage and the further development of privacy law.

[1]   Murray v Big Pictures (UK) Limited 2008 EWCA Civ 446 7 May 2008