Tort—Cause of action—Invasion of privacy

Court of Appeal, Civil Division

Sir Anthony Clarke MR, Laws and

Thomas LJJ

7 May 2008

A child has a reasonable expectation that he will not be targeted in order to obtain photographs in a public place for publication which the person who procured the taking of the photographs knows would be objected to on behalf of the child. The court has to consider the balance between the child’s right to respect for his private life under Art 8 of the European Convention on Human Rights (the Convention) and the publisher’s right to freedom of expression under Art 10.

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’s mother was the author of the wellknown Harry Potter series of books. The claimant was her infant son. The second defendant was a photographic agency. When the claimant was a year old, a photograph was taken by the second defendant of him and his parents in a public street. It was taken covertly by a photographer using a long-range lens. The claimant’s parents were unaware that the photograph was being taken and did not give their consent.

The photograph then appeared in a magazine published by the first defendant. The claimant issued proceedings against the defendants seeking an injunction to restrain further publication of the photograph or any other or similar photograph of him taken without his consent and for damages or an account of profits for breach of confidence, the infringement of his right to privacy under Art 8 of the Convention, and the misuse of private information resulting from the taking, recording, holding and publication of the photograph. The claim against the first defendant was compromised.

The second defendant applied for summary judgment. The judge considered that the claimant’s rights under Art 8 were not engaged, and struck out the action accordingly. The claimant appealed.

SIR ANTHONY CLARKE MR:

It was of some importance that the action was brought by the claimant’s parents only on his behalf and not on their behalf. It was also of note that the claim was brought on the ground that the claimant was entitled to respect for his private life under Art 8, not on the basis that all the members of the family including the parents were entitled to respect for their family life. His lordship considered v MGN Ltd [2005] UKHL 61, [2005] 4 All ER 793 and McKennitt v As hand another [2006] EWCA Civ 1714, [2006] All ER (D) 200 (Dec). The first question was whether or not there was a reasonable expectation of privacy and, if there was, Art 8 was in principle engaged.

That was an objective question. In it was stated “the question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity”.

The question whether or not there was a reasonable expectation of privacy was a broad one, which took account of all the circumstances. Those included 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.

In the case of a child the position was somewhat different from that of an adult. If, for example, 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 the instant, where the parents had taken care to keep their children out of the public gaze.

Art 8 engaged or not?

The instant case was not one in which there was a pre-existing relationship between the parties. The first question at any trial would be whether or not Art 8 was in principle engaged; that was whether or not the claimant 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. That was a lower test than would be involved if the question were whether or not a reasonable person in his position would regard publication as either offensive or highly offensive. That question would or might be relevant at the second, balancing stage, assuming Art 8 to be engaged.

At a trial, if the answer to the first question were yes, the next question would be how the balance should be struck as between the individual’s right to privacy on the one hand and the publisher’s right to publish on the other. If the balance were struck in favour of the individual, publication would be an infringement of his Art 8 rights, whereas if the balance were struck in favour of the publisher, there would be no such infringement by reason of a combination of Arts 8(2) and 10.

At each stage, the questions to be determined were essentially questions of fact. The question whether or not there was a reasonable expectation privacy was a question of fact. If there was, the next question involved determining the relevant factors and balancing them. The weight to be attached to the various considerations was a matter of fact and degree.

That was essentially a matter for the trial judge.

He concluded that the claimant had an arguable case and his parents should be permitted to take his claim to trial. The appeal would therefore be allowed.