The Court of Appeal has upheld the decision of the High Court that the Mail Online infringed the privacy of Paul Weller’s children by publishing unpixelated photographs of them out shopping.
Background
The photographs had been taken by an unnamed paparazzo photographer during a shopping trip in California in October 2012, and featured Mr Weller’s then 16 year old daughter and 10 month old twins in the street and in a café. The parents had not consented to the photographs being taken and asked the photographer to stop. The photographer had assured them that the children’s faces would be pixelated.
An article was subsequently published in the Mail Online headed “a family day out”, including seven unpixelated photographs of Mr Weller and his children. Proceedings were brought against Associated Newspapers, publishers of the Mail Online.
The High Court found that in publishing these photographs Associated Newspapers was liable for misuse of private information and/or breach of the Data Protection Act, granted an injunction preventing further publication of the photographs and awarded damages of £5,000 to Dylan, aged 16 at the time, and £2,500 to each of the twins, John Paul and Bowie, then aged 10 months. Associated Newspapers appealed the decision.
Legal issues
Associated Newspapers raised two key issues:
- Whether the publication of an ‘innocuous’ photograph of a child on a public street taken without consent, where nothing inherently private is shown, gives rise to a reasonable expectation of privacy; and
- Whether the judge should have taken account of the fact that the taking and publication of the photographs would be permitted under California law.
In dismissing the appeal the Court of Appeal made the following points:
- A child does not have a separate right to privacy merely by virtue of being a child, but there are several considerations which may mean that in a particular case a child has a reasonable expectation of privacy where an adult does not.
- There are some matters about which a person can have a reasonable expectation of privacy notwithstanding that they occur in public.
- The fact that a child’s parents are celebrities cannot alone be relied upon to argue that the child should have a lower reasonable expectation of privacy – the children should be treated in the same way as those of a child whose parents were not in the public arena, unless the parents had courted publicity for the child.
In this case it was significant that the photos were of a ‘private family outing’ and the parents did not consent to their being taken.
The Court of Appeal agreed that the nature of local law was a factor to be taken into account when considering the reasonable expectation of privacy, but found that the High Court judge had done so, and was entitled not to accord it substantial weight.
In balancing the children’s Article 8 right to privacy against Associated Newspapers’ Article 10 right to freedom of expression, the Court of Appeal said the fact that a child’s Article 8 right is engaged doesn’t mean it will automatically trump freedom of expression, but the welfare of children must be given considerable weight. The court must make a judgment applying common sense and its own experience. In this case the publication of the photos did not contribute to a current debate of general interest but had the sole purpose of satisfying public curiosity, and the children had no or only a limited public profile. The children’s Article 8 right therefore outweighed Associated Newspapers’ Article 10 right.
Comment
Although the question of whether a child has a reasonable expectation of privacy will depend on the facts, it is clear that the court affords children greater protection than adults, and the publication of photographs of the children of celebrities will not be in the public interest merely because their parents are famous. In this case the fact that the parents had not consented to the photographs being taken was found to be significant. The outcome may well be different in a case where the parents had actively sought publicity for their children.
It is currently unclear exactly what constitutes a ‘private family outing’, and whether such circumstances might in some cases give rise to a reasonable expectation of privacy for adults as well as children.
In any event, publishers should be careful to pixelate photographs of children who are not already in the public eye to avoid the risk of litigation.