| CONFIDENTIAL INFORMATION — Breach of confidence — Photographs — Reasonable expectation of privacy — Photograph of young child in public place taken covertly and published without parents’ permission — Child claiming infringement of right to respect for private and family life — Whether claim of reasonable expectation of privacy arguable — Whether claim to be struck out — Human Rights Act 1998, Sch 1, Pt I, arts 8, 10
Murray v Express Newspapers plc and another [2008] EWCA Civ 446; [2008] WLR (D) 143
CA: Sir Anthony Clarke MR, Laws and Thomas LJJ: 7 May 2008
It was at least arguable that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.
The Court of Appeal so stated in a reserved judgment, allowing an appeal by David Murray (by his litigation friends and parents Neil and Joanne Murray), from the decision of Patten J [2007] EWHC 1908 (Ch); The Times, 4 October 2007, who had struck out as unarguable his claim against the second and sole remaining defendant, Big Pictures (UK) Ltd (“BPL”), that they had infringed his right to privacy under art 8 of Sch 1 to the Human Rights Act 1998. The claim arose in respect of the covert taking and storing of photographs of him in the street with his mother, the well known author J K Rowling, and the publication of one of the photographs, without consent. The claim against the publishers of the photograph, Express Newspapers plc as first defendant, was settled. For the purpose of the proceedings it was assumed that the facts alleged in amended particulars of claim were true.
SIR ANTHONY CLARKE MR, delivering the judgment of the court, said that Dr and Mrs Murray were out walking in an Edinburgh street. Dr Murray was pushing a buggy with David in it. BPL took a colour photograph of the family group which was subsequently published in the “Sunday Express” magazine. The photograph showed Mrs Murray walking alongside the buggy and showed 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. It was taken covertly by a photographer using a long range lens. Neither David, who was about 19 months old, nor his parents were aware that the photograph was being taken, nor were his parents asked for their consent. It might well be that the mere taking of a photograph of a child in a public place when out with his or her parents, whether they were famous or not, would not engage art 8. However, all depended upon the circumstances. On the assumed facts this was not the taking of a single photograph of David in the street. It was the clandestine taking and subsequent publication of the photograph in the context of a series of photographs which were taken for the purpose of their sale for publication, in circumstances in which BPL did not ask the parents for their consent to the taking and publication of his photograph. The first question at any trial of the action would be whether art 8 was in principle engaged; that is, whether 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: see Campbell v MGN Ltd [2004] 2 AC 457. The question whether there was a reasonable expectation of privacy was a broad one, which took account of all the circumstances of the case. They included the attributes of the claimant, the nature of the activity in which he 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. If the answer were yes, the next question would be how the balance should be struck as between the individual’s right to privacy (art 8) and the publisher’s right to publish (art 10). Since the issue before the judge did not arise at a trial but under CPR r 3.4 or CPR r 24, the first question was whether David had an arguable case that there was an infringement of his rights under art 8. The court had reached a different conclusion from that of the judge. It was at least arguable that David had a reasonable expectation of privacy. The wish of parents, on behalf of their children, to protect the freedom of the children to live normal lives without the constant fear of media intrusion was (at least arguably) entirely reasonable and, other things being equal, should be protected by the law. Subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he or she would not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That was the context in which the photographs of David were taken. That did not mean that the child had a guarantee of privacy. To hold that the child had a reasonable expectation of privacy was only the first step. The balance would then have to be struck between the child’s rights under art 8 and the publisher’s rights to freedom of expression under art 10. That approach was consistent with Campbell’s case and Von Hannover v Germany (2005) 40 EHRR 1.
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