Case Summary and Outcome

The Supreme Court of the United Kingdom unanimously allowed the appeal brought by the Appellant against the High Court’s order and reinstated a claim for breach of privacy in a case wherein the photograph of a  celebrity’s child was taken and published without consent. The case arose when a photographer from Big Pictures Limited took the picture of Dr Neil and Joanne Murray’s son, David Murray without their consent. The photograph was subsequently published in several newspapers and magazines. David’s parents initiated proceedings against the photographer and Big Pictures claiming the violation of the right to privacy of their son. The High Court dismissed their appeal and delivered judgment in favour of the Defendant. The Supreme Court allowed the appeal and observed that David had a reasonable expectation of privacy since David would not have been photographed if he had not been the son of a famous person. The Court also opined that even quotidian acts of family recreation, in public places, could be adversely affected by intrusive media attention.

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Facts

On November 8, 2004, Mr Dr Neil Murray and Mrs Murray were walking with their son David Murray from their flat to a local cafe, in Edinburgh, when a photographer affiliated with Big Pictures Limited (the Defendant) took covert pictures of the family. Mrs Murray is the author of the Harry Potter books and is known more commonly by her pen name JK Rowling [para. 1]. In one of the photographs, Mrs Murray can be seen walking alongside David’s buggy. The photograph shows David’s face in profile, the clothes he was wearing, his size, the style and colour of his hair and the colour of his skin. Neither David nor his parents were aware they were being photographed nor they were asked for their consent to be photographed [para. 6].

On January 12, 2005, copies of the photographs were published in the Daily Record and the Western Daily Press. On 17 January 2005, the Murray family solicitors wrote to Big Pictures Limited complaining about the photographs which depicted David and asked for an undertaking not to publish or permit the publication of such photographs in the future [para. 7]. Subsequently, Defendant offered certain undertakings, however, expressed their unwillingness to pay any cost. 

On April 3, 2005, the aforementioned photograph was published in the Sunday Express with the headline “My Secret”, attributing to Mrs Murray in which she set out some thoughts on her approach to motherhood and family life [para. 8]. After the negotiation between the Murrays and the Defendant failed, the proceeding was initiated in David’s name through his parents as his litigation friends against the publishers of the Photograph, Express Newspapers as the first Defendant and Big Pictures Limited as the second Defendant. In the action, David asserted that his right to privacy as laid out in Article 8 of the European Convention of Human Rights (the Convention) was infringed and made claims under Data Protection Act 1998. The action against Express Newspapers was eventually settled leaving Big Pictures Limited as the sole Defendant. [para.  2].

Big Pictures Limited applied for an order striking out the claim or for summary judgment. On August 7, 2007, Justice Pattern of the High Court refused an injunction preventing the publication of the photograph, and allowed an application by Big Pictures Limited for summary dismissal of the claim. Justice Patter relied on Campbell v MGN (2004) to consider, what a reasonable individual of ordinary sensibilities would feel if placed in the same position as David and faced with the same publicity. 

Justice Patten observed that David had no obvious sensitivity to an invasion of privacy on the rationale that the photograph was taken with a long-range lens from across the street and further, that there was no direct physical intrusion into David’s personal space. Justice Patter held that the law does not allow celebrities to carve out a press-free zone for their children in respect of everything they choose to do. He concluded that there remains an area of routine activity that, when conducted in a public place, carries with it no guarantee of privacy.

Justice Patten reiterated the obiter in McKennitt v Ash (2008) that English courts pay respectful attention to the decision of the European Court of Human Rights (ECtHR)  in Von Hannover v Germany (2004). However, Justice Pattern stated that publicity on the test deployed in Von-Hannover was intrusive and can adversely affect the exercise of such social activities [para. 44]. He reasoned that if the law was such as to give every adult or child a legitimate expectation of not being photographed without consent, then it will create a right for most people to the protection of their image.  

Justice Pattern observed that routine acts such as the visit to the shop or the ride on the bus should not attract any reasonable expectation of privacy. He further stated that innocuous conduct in public places doesn’t raise a reasonable expectation of privacy, especially when considering that the boundaries of what any individual can reasonably expect to remain confidential or private are necessarily influenced by the fact that we live in an open society with a free press [para. 44].

An appeal was brought by David against the High Court’s decision, before the Supreme Court of the United Kingdom. 

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Decision Overview

Lord Sir Anthony Clarke with Lord Laws and Lord Thomas of the Supreme Court of the United Kingdom delivered a unanimous judgment. Lord Sir Anthony Clarke wrote the judgment. The central issue before the Court was whether there was an infringement of David’s rights under Article 8 of the Convention, not whether there was an infringement of the parents’ rights under it. 

Defendant contended that in the published photograph no particular act of an intimate or private nature was depicted, and nor was any particular physical feature of David portrayed. Defendant further argued that no reliance was placed on the fact that David was a child, nor was his infancy said to give rise to any particular sensitivities or vulnerabilities relevant to the claim and there wasn’t any allegation or claim made of any actual upset caused at the time of the photograph to the David or either of his parents. 

The Supreme Court observed that the Justice Pattern of the High Court focused more on the parents and not enough on the child and Justice Patter’s approach depended too much upon a consideration of the taking of the Photograph and not enough upon its publication. The child has his own right to respect his privacy distinct from that of his parents [paras. 15, 16]. 

The Supreme Court reiterated David’s claim, that it was the “clandestine taking and subsequent publication of the photograph taken for the purpose of their sale for publication”, wherein Defendant did not ask David’s parents for their consent to the taking and publication of his photograph that brought reasonable inference. Because Defendant was aware that if they had asked Murrays for their consent to the taking and publication of such a photograph of David, that consent would have been refused [para. 17].

The Supreme Court emphasized that the facts now alleged are somewhat more extensive than they were before the High Court because this application is not a trial of a preliminary issue but an application to strike the action out without a trial. The Court started its considerations on the privacy principles by highlighting that both the right to privacy and freedom of expression, as enshrined in Articles 8 and 10 of the Convention, are vitally important rights since they “lie at the heart of liberty in a modern state and neither has precedence over the other” [para. 24]. 

Subsequently, the Supreme Court reiterated the principle laid down by Lord Nicholls in Campbell v MGN (2004) that essentially the touchstone of private life is “whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy” [para. 24]. Further, the  Court, reiterated the principle laid down by Lord  Buxton in McKennit v Ash (2006), that “the balancing exercise may begin when the person publishing the information knows or ought to know that that there is a reasonable expectation that the information in question will be kept confidential” [para. 28]. 

The Court held that in the concerned case, the relevant principle to be derived from Campbell was, “whether there is a reasonable expectation of privacy.” The Court considered the question having broader scope, that demands a casuistic examination of several circumstances, including 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 [para. 36]. 

The Court reiterated the rationale of Lord Hope in Campbell to hold that in the case of a child, the position becomes somewhat different from that of an adult and further reasoned with an illustration that the expectation of privacy might be different if the parents of a child “courted publicity by procuring the publication of photographs of the child” to promote their “own interests”, in contrast to parents’ position keep their children “out of the public gaze” [para. 38].

The Court then proceeded to ask whether in the instant case, 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 [para. 39]. The Court unanimously observed that “it is at least arguable that David had a reasonable expectation of privacy”. The High Court failed to consider that David was a child, which in the Court’s view was of greater significance. 

The Supreme Court further underlined the importance of the rights of children in the international context by referring to the case of R v Central Independent Television Plc(1994), and the United Nations Convention on the Rights of the Child to which the United Kingdom is a state party. The Court also referred to Clause 6 of the Press Complaints Commission Editors’ Code of Practice, which establishes that “editors must not use the fame, notoriety or position of the parent or guardian as the sole justification for publishing details of a child’s private life” [para. 45].

The Supreme Court observed that neither Campbell nor Von Hannover concerns the child and that there was no authoritative case in England of a child being targeted as David in the instant case. Notwithstanding, the High Court’s consideration of  the parent’s concern as overstated, the Supreme Court observed that the parents’ wish, on behalf of their children, to protect the freedom of the children to live normal lives “without the constant fear of media intrusion is entirely reasonable” and should be “protected by the law.”

Taking this into account, the Court stated that just as the children of parents who are not in the public eye can reasonably expect not to have their pictures published by the press, so too the child of a famous parent. The Supreme Court held that it was clear that David would not have been photographed had he not been the son of famous book author JK Rowling. The Supreme Court disregarded the Justice Pattern reasoning that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. The Court held that the reasonable expectation test depends on all circumstances. 

After concluding that David Murray did indeed have an expectation of privacy from intrusive media attention, the Court also clarified that this was not the same as a guarantee of privacy. It was still necessary to balance the competing rights to privacy and freedom of expression. The Supreme Court held that the High Court was wrong to strike out Murray’s claim since David had an arguable case and “his parents should be permitted to take his claim to trial on his behalf” [para. 61]. 

The Supreme Court concluded that issues under the Data Protection Act 1998 should be revisited by the trial judge, and one of the significant issues that the Trial Court should determine includes the meaning of “damage” in Section 13(1) of the Data Protection Act 1998 because the High Court narrowed down the meaning in its judgment [para. 63].

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