West Law Report

JK Rowling’s son wins privacy battle in court

Posted in Freedom of expression, Privacy by mrkooenglish on May 10, 2008

The Times Legal editor wrote about JK Rowling’s son wins privacy battle in court, he quoted the Judge:

“To hold that the child has a reasonable expectation of privacy is only the first step,” the judges said. “Then comes the balance which must be struck between the child’s rights to respect for his or her private life under article 8 and the publisher’s right to freedom of expression under article 10.”

MOSLEY v NEWS GROUP NEWSPAPERS LTD

Last updated: 4:12 PM BST 29/04/2008
Queen’s Bench Division

Eady J

April 9, 2008

Freedom of expression – Newspapers – Privacy – Public interest – Video recordings – Websites – Reasonable expectation of privacy – Extensive publication – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The applicant (M) applied for an interim injunction to prevent the respondent newspaper company (N) from making available a short extract of video footage of him taking part in sexual activities with prostitutes. M was the president of a worldwide governing body of motor sport. N had published an article in its newspaper with a headline and article suggesting that he was involved in a “Nazi orgy”. Still photographs taken from the video footage were published alongside the article. The article and edited video footage were made available on N’s website until M complained on the day of publication when it was voluntarily removed and an undertaking given that it would not be shown again without 24 hours’ notice. Such notice was given three days later. After the initial publication the incident received extensive coverage throughout the world in newspapers and on websites. As a result there were a number of websites where the footage was available continuously. M did not dispute that the events as shown in the footage occurred. M submitted that the events shown in the footage were private and that their display breached the European Convention on Human Rights 1950, art. 8. He also contended that the incident was unrelated to Nazism. N argued that, since the material had been taken off the website, M had gone on record denying the allegations and that to that extent it should be entitled to refute his statements and vindicate the accuracy of its account.

ISSUE

Whether the events shown in the footage were private and that their display breached M’s right under the European Convention on Human Rights 1950, art. 8.

HELD (application refused)

(1) There was no doubt that M’s rights under art. 8 came into conflict with those of N under art. 10. One question that had to be answered was whether, in respect of the information contained in the edited footage, M still had a reasonable expectation of privacy, having regard to everything that had happened since the original publication. It was also appropriate to ask whether any limiting factors came into play, Attorney General v Observer Ltd [1990] 1 AC 109 HL applied.

A relevant consideration was whether there was a public interest in revealing the material which was powerful enough to override M’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs. The answer to that question was in the negative. Insofar as the public was ever entitled to know about M’s sexual tastes, the matter had already been covered extensively since the original coverage. There was no legitimate element of public interest that would be served by the additional disclosure of the edited footage, at the instant stage, on N’s website. One aspect of the public interest was the need to protect the public from being misled by a statement made by or on behalf of the relevant claimant. M had denied the link to Nazism. The edited footage did not convincingly show that his denial was false. But even if it was capable of being so construed, there was nothing to prevent N reasserting with whatever prominence it thought appropriate, that there was Nazi role-play. Accordingly if there was a case for saying that M’s denials had in any way misled the public and that the record should therefore be put straight for that reason, the objective could be achieved effectively without displaying the edited footage.

(2) The other limiting factor to be considered was whether the information contained in the edited footage had lost its privacy to the extent that there was nothing left for the law to protect. In the circumstances the material was so widely accessible that an order in the terms sought would make very little practical difference. One might express that conclusion either by saying that M no longer had any reasonable expectation of privacy in respect of the now widely familiar material or that, even if he had, it had entered the public domain to the extent that there was, in practical terms, no longer anything that the law could protect.

James Price QC and David Sherborne (instructed by Steeles Law)) for the applicant. Gavin Millar QC and Anthony Hudson (instructed by Farrer & Co) for the respondent