West Law Report

MURRAY v BIG PICTURES (UK) LTD

Posted in Art. 8 European Convention on Human Rights, Privacy, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:26AM BST 22/05/2008
Court of Appeal (Civil Division)

Sir Anthony Clarke MR, Laws and Thomas LJJ

May 7, 2008 (Filed: May 22, 2008)

Celebrities – Children – Photographs – Publications – Right to respect for private and family life – Children of celebrities – Publication of candid photographs – Reasonable expectation of privacy

FACTS

The appellant (M), acting through his parents, appealed against the striking out ([2007] EWHC 1908 (Ch), [2007] ECDR 20) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art. 8. M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that, even if the decision in Von Hannover v Germany (59320/00) [2004] EMLR 21 ECHR had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457, he was bound to follow Campbell in preference.

ISSUE

Whether the judge had been wrong to strike out M’s claim.

HELD (appeal allowed)

(1) In deciding whether there had been an infringement of art. 8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which, and the purposes for which, the information reached the hands of the publisher. If the answer to that were yes, then the second question was how the balance should be struck as between the claimant’s right to privacy and the publisher’s right to publish. At that stage, the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant, Campbell followed and Von Hannover considered.

(2) It was at least arguable that M had a reasonable expectation of privacy. The fact that he was a child had greater significance than had been attributed to it by the judge. Although the Press Complaints Commission had ruled that the mere publication of a child’s image could not breach its Editors’ Code of Practice when taken in a public place and unaccompanied by private details that might embarrass the child, everything depended on the circumstances. It was at least arguable that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him, and the same was true of M, especially since the photograph would not have been taken or published had he not been the son of a well-known author. In reaching his decision, the judge had relied on the decision in Hosking v Runting (2005) 1 NZLR 1 CA (NZ) for a significant part of his reasoning. However, that decision was not a sufficient reason to hold that M could not show a reasonable expectation of privacy at trial, Hosking considered.

(3) There may well be circumstances, even after Hannover, in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case. It was not possible to draw a distinction between activities that were part of a person’s private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer’s to buy milk. Moreover, it was not necessarily the case that such routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances. Subject to the facts of the case, the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf. The judge had therefore been wrong to strike out M’s claim. M had an arguable case and his parents were to be permitted to take the claim to trial on his behalf.

Richard Spearman QC and Godwin Busuttil (instructed by Schillings) for the appellant. Mark Warby QC and Jonathan Barnes (instructed by Solomon Taylor & Shaw) for the respondent.

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