Murray (by his litigation friends) v Express Newspapers plc [2007] EWHC 1908, [2007] All ER (D) 39 (Aug)
Chancery Division
Patten J
7 August 2007
There remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy for public figures, although each case will depend on its facts.
Richard Spearman QC and Godwin Busuttil (instructed by Schillings) for the claimant.
Mark Warby QC and Jonathan Barnes (instructed by Solomon Taylor & Shaw) for the second defendant.
The claimant was the infant son of his litigation friends. His mother was better known as JK Rowling, the author of the Harry Potter series of books. The second defendant was a photographic agency. In November 2004, a colour photograph was taken by the second defendant of the claimant and his parents in a public street in Edinburgh. It showed him being pushed along in a buggy by his father with his mother walking alongside. At the time the mother was pregnant with her daughter. The claimant and his parents were unaware that the photograph was being taken and did not give their consent.
The photograph later appeared in a magazine published by the first defendant. The claimant issued proceedings in June 2005, seeking an injunction to restrain further publication of the photograph or any other or similar photograph taken without consent. The claimant further sought damages or an account of profits for breach of confidence, the infringement of his right to privacy and the misuse of private information resulting from the taking, recording, holding and publication of the photograph. There was an alternative claim for relief under the Data Protection Act 1998 (DPA 1998). The claim against the first defendant was compromised and the action continued against the second defendant only. The second defendant applied for summary judgment. The issue arose about the degree of protection which someone who was well known or of public interest was entitled to in respect of their private family life.
MR JUSTICE PATTEN:
The facts included that the claimant’s mother had achieved enormous success and wealth. She accepted that as a result there would be curiosity and even a measure of legitimate interest on the part of the media and the general public in her activities and her appearance. In contrast, the claimant’s parents since his birth had never sought to place the claimant’s family as a unit or his siblings as individuals in the public eye, but had repeatedly and consistently taken steps to secure and maintain the privacy of the claimant and their other children, in which they had been substantially successful.
His lordship considered, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 All ER 995.
The question of whether or not a child in any particular circumstances had a reasonable expectation for privacy had to be determined by the court taking an objective view of the matter: including the reasonable expectations of his parents in those same circumstances about whether or not their children’s lives in a public place should remain private. Ultimately, it would be a matter of judgment for the court with every case depending upon its own facts. The point that needed to be emphasised was that the assessment of the impact, taking and subsequent publication of the photograph on the child could not be limited by whether or not the child was physically aware of the photograph being taken or published, or personally affected by it.
His lordship considered Strasbourg authorities, including Peck v United Kingdom (App No 44647/98), (2003) 36 EHRR 719 and Von Hannover v Germany (App No 59320/00) [2004] EMLR 379.
Von Hannover recognised that an individual whose life and activities were of public interest might have a legitimate expectation of privacy in relation to private family and personal activities which were not in themselves either embarrassing or intimate in a sexual or medical sense. It also established that in the case of someone who was well known but not a public figure in the sense of being a politician or the like, the publication of the photographs and the information they contained could not be justified as a legitimate exercise of the right to freedom of expression—where the sole purpose of publication was to satisfy readers’ curiosity rather than to contribute to a debate on, or the raising of an issue of, general public interest or importance.
His lordship agreed with other commentators that the unfettered application of that view of Von Hannover “would herald a revolution in Britain’s journalistic culture” (Tugendhat and Christie, The Law of Privacy and the Media (2nd ed)). But as a matter of precedence his lordship was bound by the decision in Campbell.
His lordship started with a strong predisposition to the view that routine acts, such as a visit to the shop should not attract any reasonable expectation of privacy. It was inevitable that the boundaries of what any individual could reasonably expect to remain confidential or private were necessarily influenced by the fact of an open society with a free press. If harassment became an issue then it would be dealt with specifically. His lordship had considerable sympathy for the claimant’s parents. But the law did not allow them to carve out a press-free zone for their children in absolutely everything they chose to do.
His lordship turned to the alternative claim under DPA 1998. The reference to “lawfully” in DPA 1998, Sch 1, Pt 1 had to be construed by reference to the current state of the law—in particular, in relation to the misuse of confidential information. The principles discussed in the first part of the judgment were therefore directly applicable to the first principle and should produce a consistent result. The data was therefore processed lawfully. The question then arose as to whether or not it was processed fairly. The taking of the photograph was not consented to and was taken covertly but no actual deception was practised and the taking of a photograph in that way could not be said to be unfair if it was otherwise lawful.
DPA 1998 did not purport to give the data subject any property in his personal data, but merely regulated the way in which it could be processed. It did not give him a cause of action based upon a misuse of data which did not actually cause him to suffer damage or distress, but rather allowed the data controller to profit from use of the material.
The claim would be dismissed.
