| HUMAN RIGHTS — Right to respect for private and family life — Privacy — Child claimant son of famous author — Photograph taken of child without parents’ consent while engaged in ordinary family activity in public street — Taking of photograph causing no distress or harassment — Whether right to respect for private and family life engaged — Whether claim for injunction to restrain further publication to be struck out — Human Rights Act 1998, Sch 1, Pt I, art 8
Murray (by his litigation friends, Murray and another) v Express Newspapers plc and another [2007] EWHC 1908 (Ch D)
Ch D: Patten J: 7 August 2007
Routine activities conducted in a public place, such as walking down the street or visiting the shops, did not attract any reasonable expectation or guarantee of privacy so that an individual who had been photographed in a public place could not rely on the right to respect for his private and family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998, absent some other special circumstance such as harassment or distress.
Patten J so held in the Chancery Division when granting the application of the second defendant, Big Pictures (UK) Ltd, a photographic agency, to strike out the claim of David Murray, a child by his parents as litigation friends, for an injunction to restrain the further publication of a photograph taken, without the parents’ consent, of him in a public street. The claimant’s mother was a famous author. The picture, taken covertly by the agency, had been published in a paper owned by the first defendant but had not caused the claimant or his parents any distress at the time it was taken. By the proceedings, the claimant’s parents sought effectively to establish a right under art 8 to personal privacy for themselves and their children when engaged in ordinary family activities conducted in public places. The claim against the first defendant was compromised.
PATTEN J said that the stance of the English courts in the decisions up to and including Campbell v MGN Ltd [2004] 2 AC 457 had been to limit the protection afforded by art 8 in such cases to conduct or information of a personal or embarrassing kind. It had been argued that the European Court of Human Rights case Von Hannover v Germany (2004) EHRR 1 had widened that limit to include ordinary family activities conducted in public places, but a distinction should be drawn between a person engaged in family and sporting activities and something as simple as a walk down a street. The first type of activity was clearly part of a person’s private recreation time intended to be enjoyed in the company of family and friends. Publicity under the test deployed in Von Hannover’s case was intrusive and could adversely affect the exercise of such social activities. But if the law gave every person a legitimate expectation of not being photographed without consent on every occasion on which they were not on public business then it would have created a right for most people to the protection of their image. If a simple walk down the street qualified for protection then it was difficult to see what would not. Accordingly, the law did not allow any parent wishing to shield their children from media attention a press-free zone in respect of absolutely everything they chose to do. Moreover, even if the European court in Von Hannover’s case did extend the scope of protection into areas which conflicted with the principles and the decision in Campbell’s case, the court was bound to follow the latter case in preference. |
