In a judgment handed down on Tuesday Mr Justice Patten refused an injunction preventing publication of a photograph of the four year old son of J K Rowling and her husband (Dr Neil Murray). The First Defendant was Express Newspapers and the Second Defendant (which defended the application) was Big Pictures Ltd (“BPL”), a well known celebrity photographic agency.
In November 2004 a photograph was taken by BPL of David Murray (JK Rowling’s son) in a buggy being pushed along by his parents in an Edinburgh street. The photograph was taken covertly by a photographer using a long lens. The family were unaware that the photograph was being taken and did not consent to it.
The photograph was published by the Sunday Express in April 2005. Proceedings were issued in June 2005 for an injunction preventing further publication of the photograph, along with damages for infringement of privacy. There was also a claim under the Data Protection Act 1998, which the judge dismissed. The Express settled the claim against it and the action continued only against BPL. As the judge observed, the case “is seen by the Claimant’s parents as something of a test case designed to establish the right of persons in the public eye (such as the Claimant’s mother) to protection from intrusion into parts of their private life even when they consist of activities conducted in a public place.”
This hearing addressed an application by BPL for summary dismissal of the claim. Essentially the debate concerned whether “the principles set out by the House of Lords in Campbell v MGN Ltd need to be re-considered or amended in light of the more recent Strasbourg jurisprudence … and in particular the decision in Von Hannover v Germany.”
As the judge observed, the purpose of this claim “will be to carve out for the child some private space in relation to his public appearance“. The judge recognised that in the case of a child the reasonable expectations of his/her privacy “cannot be wholly divorced from the wishes and actions of its parent“, and he noted the efforts which J K Rowling had taken to keep her children out of the limelight.
The judge reviewed the English authorities, and in particular the speeches of the House of Lords in Campbell. He noted the difficulties of applying the normal tests to a child, whose feelings cannot of course be affected in the same way as an adult’s by the kind of activity complained of in this case. He observed: “the question whether a child in a particular circumstance has a reasonable expectation of privacy must be determined by the court taking an objective view of the matter including the reasonable expectations of its parents in those same circumstances as to whether their children’s lives in a public place should remain private. Ultimately, it will be a matter of judgment for the Court with every case depending on its own facts.”
BPL’s first position was that there was no reasonable expectation of privacy on the part of the child at the time the photograph was taken. Its fall back position was that even if Article 8 was engaged, then its right of freedom of expression should take precedence. The judge observed that the applicable test in these situations cannot be one of simply whether the photograph was taken of the claimant in a public place or private place. The judge then ventured this analysis:
“In my opinion, therefore, the widespread publication of a photograph of someone which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in a public place, may be an infringement of the privacy of his personal information. Likewise, the publication of a photograph taken by intrusion into a private place (for example by a long distance lens) may in itself be such an infringement, even if there is nothing embarrassing about the picture itself.”
The judge observed that both Lord Hope and Baroness Hale (in their Campbell speeches) expressed no doubts about the correctness of the outcome of a New Zealand case of almost identical facts, where photographs were taken of the children of a well known personality. He clearly took that as a strong indication as to which way he should find in this case.
After then considering the European Court of Human Rights jurisprudence, and then the UK authorities which post-dated the key decision of the ECHR in Hannover, the judge noted the difficulties which he faced as a first instance judge in deciding how he should “give effect to what I perceive to be the reason of the ECHR in Von Hannover where it appears to conflict with the decision of the House of Lords in Campbell.”
However, the judge was bound by the decision in Campbell and went on to draw a distinction between a child or adult “engaged in family and sporting activities and something as simple as a walk down the street or a visit to the grocers to buy milk. The first type of activity is clearly something of a person’s private recreation time intended to be enjoyed in the company of family and friends. Publicity on the test deployed in Von Hannover is intrusive and can adversely affect the exercise of such social activity. But if the law is such as to give every adult or child a legitimate expectation of not being photographed without the consent on any occasion on which they are not, so to speak, on public business, then it will have created a right for most people to the protection of their image. If a simple walk down the street qualifies for protection then it is difficult to see what would not. For most people who are not public figures in the sense of being politicians or the like, there will be virtually no aspect of their life which cannot be characterised as private. Similarly, even celebrities would be able to confine unauthorised photography to the occasions on which they were at a concert, film premiere, or some similar occasion.”
The judge went on to conclude that: “If harassment becomes an issue then it can and should be dealt with specifically as it is by the 1997 [Protection from Harassment] Act. I have considerable sympathy for the claimant’s parents and anyone else who wishes to shield their children from intrusive media attention. But the law does not in my judgment (as it stands) allow them to carve out a press-free zone for their children in respect of absolutely everything they choose to do. Even after Von Hannover there remains, I believe, an area of routine activity which when conducted in a public place carries no guarantee of privacy. In my view this is just such a case.”
Since leave to appeal has been granted, and because of the strong feelings which Ms Rowling clearly has on this subject, this matter seems likely to be considered both by the Court of Appeal and the House of Lords in the coming months. Celebrity parents will be watching the outcome with great interest, as will celebrity photographers and the press.