In a unanimous judgment handed down today in this hugely significant privacy claim the Court of Appeal has overturned the judgment of Mr Justice Patten and allowed the appeal brought by David Murray, the son of JK Rowling and her husband, against an order striking out their claim concerning photographs taken of him by Big Pictures (UK) Ltd (“BPL”), a well known celebrity photographic agency, which were published by the Express.
The Background Facts
In November 2004 a photograph was taken by BPL of David 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.”
The First Instance Decision
The first instance judge (Mr Justice Patten) had reviewed the authorities and refused an injunction preventing the publication of the photograph, and had allowed an application by BPL for summary dismissal of the claim.
The judge expressed considerable sympathy for the claimant’s parents and anyone else who wished to shield their child from intrusive media attention. He concluded, however, that the law did not (as it stood) “allow them to carve out a press-free zone for their children in respect of absolutely everything they chose 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.”
The Decision of the Court of Appeal
The first significant part of the judgment is the acceptance of the submissions on behalf of JK Rowling that insufficient weight was given by the judge to the fact that the claim was on behalf only of her son, rather than JK Rowling herself, or her family generally. The court stressed that “The child has his own right to respect for his privacy distinct from that of his parents.”
The difficulty faced by lawyers making judgments in these circumstances emerges clearly from this observation by the court: “it may well be that the mere taking of a photograph of a child in a public place when out with his or her parents, whether they are famous or not, would not engage article 8 of the Convention. However, as we see it, it depends upon the circumstances.”
Here however the Court of Appeal took into account the fact that it was concerned with “the clandestine taking and subsequent publication of the Photograph in the context of a series of photographs which were taken for the purposes of their sale and publication, in circumstances in which BPL did not ask David’s parents for their consent to the taking and publication of his photograph. It is a reasonable inference on the alleged facts that BPL knew that if they had asked Dr and Mrs Murray for their consent to the taking and publication of such a photograph of their child, that consent would have been refused.”
The court took into account the particular business methodology of BPL and the significant commercial value in such photographs. In the circumstances surrounding this claim it noted the concern on the part of the parents that if this action failed the obvious commercial incentive for the taking and publication of such photographs would encourage future such intrusions.
The court, after reviewing the relevant passages of Campbell v Mirror and McKennit v Ash, concluded that the first question in any trial of this action would be whether Article 8 was in principle engaged: “that is whether David had a reasonable expectation of privacy in the sense that a reasonable person in his position would feel that the Photograph should not be published.”
The second balancing stage question was (assuming Article 8 was engaged): how should the balance be struck between the individual’s right to privacy and the publisher’s right to publish? As the court observed, these questions are essentially considerations of fact and degree for the trial judge. Reviewing the judgment of Mr Justice Patten, the court came to a different conclusion: “In our opinion it is at least arguable that David had a reasonable expectation of privacy. The fact that he is a child is of greater significance than the judge thought.”
The court noted paragraph 6(v) of the PCC Code of Practice which provides that: “Editors must not use the fame, notoriety or position of the parent or guardian as a sole justification for publishing details of a child’s private life.” The court considered that if a child of parents 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.
The court made specific reference to the case of Hosking v Runting, where the New Zealand Court of Appeal rejected a privacy claim on behalf of a child in similar circumstances. However, the court decided that the decision of the House of Lords inCampbell should be followed in preference to that authority, and noted the judge’s reliance on that authority as part of its reasoning to reject it.
The court stressed that the “focus should not be on the taking of the photograph in the street but on its publication.” It therefore rejected the view of the judge that “if the Claimant succeeds in this action, the Courts will have created an image right.” The court made only a brief reference to the Von Hannover case observing that they regarded their conclusions as consistent with the decision of the ECHR in that action.
The court concluded 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 the photographs knew would be objected to on behalf of the child. That is the context in which the photographs of David were taken.”
This decision is hugely significant for individuals in the public eye who wish to protect their children from media intrusion. However, it seems that only parents who have consistently taken steps to protect their children from the media glare will elicit the sympathy of the court, as this judgment makes clear.
One outstanding issue to be addressed is therefore the extent to which the Article 8 rights of a child can be lost through the actions of his or her parents. The court specifically observed that a child has a right to privacy distinct from his or her parents. There are plainly other rights afforded by the European Convention which parents cannot discard on their children’s behalf (such as the right to life). At some stage the court may have to decide whether children of parents who have not taken the same care as JK Rowling and her husband should enjoy less protection from media intrusion as a consequence.
The decision also indicates the way the appellate courts appear to be going on the issue of privacy. It was the Court of Appeal that unanimously rejected Naomi Campbell’s claim against the Mirror. Now it has unanimously found that a claim over a photograph taken in a public place is at least arguable. BPL now face a tough decision as to whether to try to overturn this decision in the House of Lords, or accept the commercial consequences of this decision which will undoubtedly reduce the value of such photographs.