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(EWCA Civ 446)
In November 2004 Dr Neil Murray and his wife Joanne Murray were walking in an Edinburgh street shortly after 9 am in the morning with their son, David (who at that time was aged about 19 months) in his buggy: a typical, if not mundane, street scene you would expect to find at any time of day, any time of year, on the streets of Britain.
Not quite so mundane, it seems, if the mother walking with the child is JK Rowling, the internationally famous multimillionaire author of the Harry Potter books. Whilst the Murray family were engaging in this seemingly innocuous activity they were being covertly photographed with a long range lens by photographers from celebrity photographic (paparazzi) agency, Big Pictures (UK) Limited (BPL) which licenses images in the UK and internationally.
On 3 April 2005 the Sunday Express magazine published a photograph from the series taken by BPL in November 2004 under a headline “My Secret” along with text of a quotation from JK Rowling in which she set out some thoughts on her approach to motherhood and family life. The photograph published was of David being pushed in a buggy, and showed his face in profile, his clothes, his size, the style and colour of his hair and the colour of his skin (the Photograph).
The accuracy of the quote accompanying the Photograph was not challenged but the pleaded case was that it related to Jessica (JK Rowling’s eldest daughter) and was made several years earlier and was not provided for publication in that edition of the Sunday Express or in conjunction with the Photograph.
There was no doubt that as at the date of the publication of the Sunday Express magazine, the Murrays did not consent to the publication of the Photograph and indeed it was “at least arguable” that the Murrays positively objected to the publication of any photographs of David.
The Claim
The Claim was commenced on 24 June 2005 on David’s behalf by his parents Dr and Mrs Neil Murray acting as his litigation friends against the Express Newspapers Limited and BPL.
David sought an injunction to restrain further publication of the Photograph and any similar taken by BPL, and for damages or an account of profits for breach of confidence, infringement of David’s right to privacy and misuse of private information resulting from the taking, recording, holding and publication of the photograph. An alternative claim was made under the Data Protection Act 1998. Express Newspapers compromised the claim against them, so the action proceeded only against BPL.
The Strike Out Application
On 7 March 2007, BPL made an application for summary judgment or a strike-out of the Claim. Patten J, the High Court judge who heard the application, granted the relief sought. He considered that there was no reasonable prospect of David’s claim succeeding at trial and struck out the claim on that basis in accordance with CPR 3.4.
Breach of confidence
Patten J struck out the claim for breach of confidence on two grounds:
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1. No reasonable expectation of privacy |
Patten J held that David did not have a reasonable expectation of privacy such that Article 8 was engaged. He considered that, even after Von Hannover v Germany [2004] EMLR 21, there remained an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy and the conduct depicted in the Photograph was one of these areas.
Referring also to McKennitt v Ash [2006] EWCA Civ 1714 in support of that contention, he said that in McKennitt Buxton LJ “clearly considered that 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 under Article 8. There is, however, no specific guidance (and probably cannot be) as to where precisely the line should be drawn.”
He distinguished Campbell v. MGN [2004] UKHL 22, in this case on this basis in that although it also concerned a photograph taken in public, that photograph additionally revealed sensitive personal information in that Naomi Campbell had attended a Narcotics Anonymous meeting. In contrast, David was being pushed along by his parents “on the most innocent and ordinary of occasions”.
Although Patten J expressed “considerable sympathy” for those in the position of the claimant’s parents, he concluded that “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”. In the absence of any direct harm to David, he was not persuaded that his mother’s understandable sensitivity and upset could dictate the legal boundaries of protection.
Patten J relied on the New Zealand case of Hosking v Runting [2005] 1 NZLR 1 the facts of which were “materially indistinguishable” from the present case. In that case, an injunction was sought (unsuccessfully) by a television personality to restrain publication of photographs taken of his 18 month old twins being pushed down a street by their mother.
Patten J gave a second reason for striking out the Claim. He considered that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the decision in Campbell, Patten J was in no doubt that he was bound to follow the House of Lords in Campbell (following Kay v Lambeth LBC [2006] 2 AC 465). As he regarded this case as materially indistinguishable from Hosking v Runting, he was satisfied there was no realistic prospect of success on that test.
Given his conclusion that Article 8 was not engaged in the circumstances, there was no need to consider the wider issues of freedom of expression and the balancing exercise.
Data Protection Act
Patten J also rejected the claim for compensation under the Data Protection Act 1998 (DPA). It was common ground that BPL was a data controller in respect of the photograph and the information it contained, and that the latter comprised sensitive personal data in that it referred to the David’s “racial or ethnic origin”. Patten J however rejected that there had been unfair or unlawful proceeding of the Photograph as data under the DPA in light of his findings as to there being no breach of confidence and any residual claim under breaches by BPL of Schedule 1 of the Act were dismissed as being immaterial and not causative of the publication complained of.
A claim for compensation under s.13 by reason of a failure to register under s.17 also failed as that was not pleaded and in any event no private remedy could be sought under that section.
The Appeal
The Murrays appealed the decision to strike out David’s Claim to the Court of Appeal and the judgment was delivered on 7 May 2008.
The Court of Appeal reiterated the principle that a claimant is entitled to have the action tried unless the defence is plainly correct on the assumed facts and that a statement of claim should only be struck out if it discloses no reasonable grounds for being brought. Sir Anthony Clarke MR, Lord Justice Laws and Lord Justice Thomas found that David’s case did have a reasonable prospect of success at trial and as such the Claim should be reinstated.
David’s right to respect for his private and family life
The issue of principle was whether David, who is not a public figure in his own right, but is the child of one, is entitled to protection from being photographed even if the photograph shows nothing embarrassing or untoward.
The Court of Appeal considered that the judge had focused too much upon the parents and not enough upon the child. The child has his own right to respect for his privacy as distinct from that of his parents. The Court of Appeal considered it clear that the Claim was not an attempt by David’s parent’s to establish a right to personal privacy for themselves when engaged in ordinary family activities. They considered that the position of the parents and their child was distinct and that David might have a reasonable expectation of privacy where his parents might not.
It was relevant that David’s parents had never sought since his birth to place the family as a unit of him or his siblings in the public eye but rather have repeatedly and consistently taken steps to secure and maintain the privacy of David and their other children in which they have been largely successful.
Privacy the principles
The Court of Appeal referred to the two most important cases on the issue of privacy: Campbell v. MGN and Von Hannover v. Germany. In a case where a decision of the ECtHR is inconsistent with a decision of the House of Lords, the lower Courts are obliged to follow the latter. The Court of Appeal therefore focussed upon the decision in Campbell. The principles stated by Lord Nicholls were helpfully summarised as follows:
- Article 10 and Article 8 are vitally important rights which lie at the heart of liberty in a modern state and neither takes precedence over the other;
- breach of confidence claims such as this are better encapsulated as “misuse of private information”;
- Articles 8 and 10 are as much applicable to disputes between individuals as between individuals and public bodies;
- the touchstone of private life is whether in respect of the disclosed facts, the person in question had a reasonable expectation of privacy;
- there is a distinction between invasion of privacy and whether the individual’s rights are infringed or not bearing in mind the application of articles 8(2) and 10.
The threshold test is whether the claimant has a reasonable expectation of privacy and as such whether Article 8 is engaged (an objective question). The Court of Appeal considered that the question whether there is a reasonable expectation of privacy is a “broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher”.
It was accepted that the position of a child was different to that of an adult. The Judge had considered this issue; he said that the protection to which a child is entitled would depend “not only upon the circumstances in which the photograph was taken and its actual impact on the child, but also the position of the child’s parents and the way in which the child’s life as part of that family had been conducted”.
The Court of Appeal accepted this approach and considered that for example, “if the parents of a child courted publicity by procuring the publication of photographs of the child in order to promote their own interests the position would or might be quite different from a case like this”. David’s mother, J K Rowling, has always kept her private life completely out of the media’s eye. She has never authorised publication of photographs of her children nor talked about her family in interview; she does not even take her children to book launches or other such public events.
Patten J held that the threshold had not been met in this case. He started with a “strong predisposition” to the view that routine acts such as a visit to the shop or the ride on the bus should not attract any reasonable expectation of privacy. He considered that the law “does not in [his] judgment allow them to carve out a press-free zone for their children in respect of absolutely everything they choose to do”.
The Court of Appeal found that too much emphasis had been put in the first instance decision on the circumstances of the taking of the Photograph rather than its publication. Whilst a person might not have the right to object to their photograph being taken in a public place, that person might, however, have a reasonable expectation that the photograph is not published to millions of people. They considered that “children would have a reasonable expectation of privacy, in the sense that they could reasonably expect to be left alone without photographs of them being published in the media without their consent” was at least arguably a view which should be adopted.
The Court of Appeal considered that there was at least an arguable case that David had a reasonable expectation of privacy. The fact that David is a child was of more considerable importance than had been given in the first instance judgment. They referred to the importance of the rights of children and how they have been recognised in many different contexts e.g. R v Central Independent Television Plc and United Nations Convention on the Rights of Child to which the UK is a party. Reference was also made to the PCC Code which states: “Editors must not use the fame, notoriety or position of the parent or guardian as sole justification for publishing details of a child’s private life”.
In respect of the claim under the Data Protection Act (DPA) the Court of Appeal thought that it should be revisited at trial in light of the trial judge’s findings of fact, and should not be struck out. The claim under the DPA raised important issues, not least the meaning of ‘damage’ under s.13(1) of the DPA which they considered Patten J had arguably construed too narrowly.
Summary
Whilst this appeal was only on the question of whether CPR 3.4 had been properly applied and whether there was a reasonable prospect of David’s claim succeeding at trial, the Court of Appeal used its judgment on this issue as an opportunity to look at the current state on the law in respect of ‘privacy’ claims.
Patten J’s concerns that the Murrays could use David’s right to privacy as a means to establish their own where they had none are perhaps well intentioned, however as is the case with many photographs of public figures with their children published in the media, the faces of the children in those pictures can easily be pixelated in order to protect the rights of the child but not extending the protection to the other adults in that photograph. The effect of recognising the reasonable expectation of privacy which a child of a celebrity might have would not necessarily therefore have any chilling effect upon the freedom of expression.
The Court of Appeal in this judgment gave some helpful pointers as to how the UK’s privacy laws can be summarised as follows:
- a child of famous parents might have a reasonable expectation of privacy where his parents have none
- how a famous parent has chosen to raise their child in terms of exposing them to media attention will inform whether the child itself (though not making those decisions as to its own media exposure) has a reasonable expectation of its privacy being respected
- there is a distinction to be drawn between the circumstances of a photograph being taken and the nature of its publication; whilst a person might not be able to object to his photograph being taken in public places, he might have grounds to object to the widespread publication of that photograph to the public.
Whether David will succeed in establishing his claim at trial remains to be seen, but there are certainly strong hints from the Court of Appeal in this judgment that David should succeed in establishing the threshold test at trial at least.
Emma Stoker
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