COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HON. MR JUSTICE PATTEN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE THOMAS
| DAVID MURRAY (by his litigation friends NEIL MURRAY and JOANNE MURRAY)
|- and -
|BIG PICTURES (UK) LIMITED
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Mark Warby QC and Mr Jonathan Barnes (instructed by Messrs Solomon Taylor & Shaw) for the Respondent
Hearing dates: 10 and 11 March 2008
Crown Copyright ©
Sir Anthony Clarke MR :
This is the judgment of the court.
1. "We undertake not to further publish, license or sell the images in question"; (letter dated 21 January 2005).
2. "We cannot undertake to return the images to you. We can however undertake to delete the images from our database and our website;" (letter dated 25 January 2005).
3. "We are willing to contact all publishing companies to inform them that the pictures in question are no longer available for publication"; "(21 January 2005)"; and then "We are more than happy to carry out our undertakings with regards to informing our clients that those pictures are no longer available for publication; (letter 4 March 2005)."
Schillings added that BPL was in breach of some at least of the undertakings and sought further performance of them, an apology and costs.
"… I think it is fair to say that the action is seen by the Claimant's parents as something of a test case designed to establish the right of persons in the public eye (such as the Claimant's mother) to protection from intrusion into parts of their private or family life even when they consist of activities conducted in a public place."
We do not think that that is correct. The evidence supports the conclusion that David's mother has not sought to protect herself from the press, no doubt on the basis that she recognises that because of her fame the media are likely to be interested in her. It is also of note that the claim is brought on the ground that David is entitled to respect for his private life under article 8 of the Convention, not on the basis that all the members of the family including the parents are entitled to respect for their family life.
"The issue for the Court in these proceedings and most of the argument on this application is centred on the degree of protection which someone who is well known or of public interest is entitled to in respect of their private family life. The reality of the case is that the Claimant's parents seek through their son to establish a right to personal privacy for themselves and their children when engaged in ordinary family activities wherever conducted."
Again we do not think that that is quite correct. We do not think that the reality is that the parents seek through their son to establish a right to personal privacy for themselves and their children when engaged in ordinary family activities. The positions of parents on the one hand and children on the other hand are distinct. We will return to the relevant test in a moment but it seems to us that David may have a reasonable expectation of privacy in circumstances in which his famous mother might not. In our judgment the question in the action is whether there was an infringement of David's rights under article 8, not whether there was an infringement of the parents' rights under it.
"13. I have already set out the basic facts as pleaded, but there are a number of additional matters set out in the Particulars of Claim which have to be brought into account as part of the assumed basis for the claim. They can be summarised as follows:
i) The Claimant's mother has achieved enormous success and wealth from the hugely popular series of Harry Potter books together with the films of those novels and associated merchandising;
ii) The Claimant's mother accepts that as a result of this there will be curiosity and even a measure of legitimate interest on the part of the media and the general public in her activities and her appearance;
iii) In contrast to (ii) above the Claimant's parents since his birth have never sought to place the Claimant's family as a unit or his siblings as individuals in the public eye but have repeatedly and consistently taken steps to secure and maintain the privacy of the Claimant and their other children in which they have been substantially successful. In particular, the children have never been taken to events such as a book launch at which they would have been exposed to public view and to media and other publicity;
iv) The Claimant's mother has not placed any photograph of any of her children on her website or provided any such photograph for publication;
v) The Claimant's mother has never discussed details of her private life or those of her family in any interview;
vi) Only three photographs of Jessica have appeared in the media and none of these was authorised by the Claimant's parents. In the case of one of the photographs (taken on a beach in Mauritius) the Claimant's mother made a complaint to the Press Complaints Commission (PCC) which was upheld by a decision of the PCC as a breach of Cl.3 of the Code; and
vii) Notwithstanding this, not only the Claimant's mother but also the rest of the family have been subjected to continual and repeated attention by the media and members of the public. This is unwelcome and threatens in future to involve either a direct or indirect interference with the Claimant's private life in particular because his mother becomes upset while she is out on the street and is photographed with her children and her children also become upset either on their own account or because she has become upset.
14. Mr Warby emphasises as part of his application a number of what he says are significant omissions from the Particulars of Claim; (1) no particular act of an intimate or private nature is said to have been depicted; (2) the photograph is not said to have portrayed any particular physical feature of the Claimant; (3) no reliance is placed on the fact that the Claimant is or was a child, nor is his infancy said to give rise to any particular sensitivities or vulnerabilities relevant to the claim; and (4) no allegation is made of any actual upset caused at the time of the photograph to the Claimant or either of his parents and no claim is made by the Claimant in respect of upset caused to himself or to his parents.
15. So far as this last point is concerned, it is accepted by the Claimant that he was not himself upset by the taking of the photograph or by its subsequent publication and cannot in any event claim for any upset caused to others. But this, I think, highlights the somewhat artificial nature of a claim by a child in relation to the issues of breach of confidence and privacy. Very young children are likely to be oblivious to the taking of photographs unless they are taken at very close range and in a way which causes the child actual fear and distress. This is not what this case is about. It is not based on distress or harassment caused to the Claimant. The issue of principle is whether the Claimant who is not a public figure in his own right but is the child of one, is entitled to protection from being photographed in a public place even where a photograph shows nothing embarrassing or untoward but in which he is shown depicted with his parents. Looked at from the perspective of his parents and in particular his mother the question is, as I stated earlier, whether someone who is well known or a public figure, is entitled to a measure of protection in respect of their ordinary family life even when conducted in a public place. If such a right is established, then it must in my opinion extend not only to the adult individual but also to the infant and dependant members of his or her family and be enforceable equally by each of them. This approach is, I believe, consistent with the Court's duties towards the Claimant as a child. In relation to under age children the Court has to make assumptions and a judgment as to what measure of protection they are entitled to having regard to the way in which they have been brought up; the way they have led their lives under the control of their parents and any other relevant circumstances. The fact that they are children is obviously important in itself and Mr Spearman has rightly stressed the Claimant's status as a child and its recognition (eg) in the Press Complaints Commission Code and in the 1990 United Nation's Convention on the Rights of the Child with its emphasis on the need for the state and its institutions to protect the child from unlawful interference with his or her privacy, family and home: see UNCRC Art.16.
16. But one needs, I think, to differentiate between the case where the child has for medical or some other personal reasons come to the knowledge of the general public and for those very reasons may be particularly vulnerable to harm from intrusive press exposure and the much more ordinary case (such as the present one) in which the child comes into focus largely if not exclusively by being in the company of his or her much more famous parents. Even in cases of this kind the Court is bound to have regard to any particular harm (actual or prospective) which the child may suffer from having his image publicly displayed. But in most such cases (and on the pleadings this is no exception) the child will have suffered no upset or harm. The purpose of the claim will be to carve out for the child some private space in relation to his public appearances.
17. For this reason it is difficult to see how in the converse case a famous parent who chooses to exploit his children to gain personal publicity could avoid publication of photographs taken of his children in a public place simply by resorting to the device of making that child the Claimant. There is an obvious argument that the reasonable expectations of a child in respect of his or her privacy cannot be wholly divorced from the wishes and actions of its parents and the Court has to look at all the relevant circumstances in the round when deciding what degree of protection to enforce. This is, I think, recognised in this case from the express reference in the Particulars of Claim to the degree to which the Claimant's mother has taken steps to keep her children out of the limelight."
A little later, at , the judge repeated his view that it was artificial for the parents to bring the action in the name of the child.
"whether the Claimant who is not a public figure in his own right but is the child of one, is entitled to protection from being photographed in a public place even where a photograph shows nothing embarrassing or untoward but in which he is shown depicted with his parents."
Moreover, we do not agree that it is artificial for the parents to bring the action in the name of the child.
The correct approach
Privacy – the principles
Campbell v MGN
"Article 8 –Right to respect for private and family life
1. Everyone has the right to respect for his family and private life …
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the protection of the rights and freedoms of others.
Article 10 – Freedom of expression
1. Everyone has the right of freedom of expression. …
2. The exercise of these freedoms, since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or rights of others …"
i) The right to freedom of expression enshrined in article 10 of the Convention and the right to respect for a person's privacy enshrined in article 8 are vitally important rights. Both lie at the heart of liberty in a modern state and neither has precedence over the other: see .
ii) Although the origin of the cause of action relied upon is breach of confidence, since information about an individual's private life would not, in ordinary usage, be called 'confidential', the more natural description of the position today is that such information is private and the essence of the tort is better encapsulated now as misuse of private information: see .
iii) The values enshrined in articles 8 and 10 are now part of the cause of action and should be treated as of general application and as being as much applicable to disputes between individuals as to disputes between individuals and a public authority: see .
iv) Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy: see .
v) In deciding whether there is in principle an invasion of privacy, it is important to distinguish between that question, which seems to us to be the question which is often described as whether article 8 is engaged, and the subsequent question whether, if it is, the individual's rights are nevertheless not infringed because of the combined effect of article 8(2) and article 10: see .
"Different forms of words, usually to much the same effect, have been suggested from time to time. The second Restatement of Torts in the United States (1977), article 652D, p 394, uses the formulation of disclosure of matter which 'would be highly offensive to a reasonable person'. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13, para 42, Gleeson CJ used words, widely quoted, having a similar meaning. This particular formulation should be used with care, for two reasons. First, the 'highly offensive' phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the 'highly offensive' formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion."
"Where it is not, the broad test is whether disclosure of the information about the individual ("A") would give substantial offence to A, assuming that A was placed in similar circumstances and was a person of ordinary sensibilities."
At , after referring to the judgment of Gleeson CJ in the Australian Broadcasting Corporation case, Lord Hope said that that test was useful in cases where there was room for doubt but that there was no room for doubt on the facts of the Campbell case.
"If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. So there is normally no need to go on and ask whether it would be highly offensive for it to be published."
On that approach, there is no difference between Lord Nicholls, Baroness Hale and Lord Hope, namely that the first question is whether there is a reasonable expectation of privacy and, if there is, that article 8 is in principle engaged. Nor is there any difference between their opinions and that of Lord Carswell, who expressly agreed with Lord Hope and Baroness Hale.
"the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people."
At  Lord Hoffmann said that the same principles applied to photographs but added at  that the famous and the not so famous who go out in public must accept that they may be photographed without their consent, just as they may be observed without their consent. He concluded:
"As Gleeson CJ said in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13, para 41:
"Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people."
"74. But the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs can publish them to the world at large. In the recent case of Peck v United Kingdom (2003) 36 EHRR 41 Mr Peck was filmed on a public street in an embarrassing moment by a CCTV camera. Subsequently, the film was broadcast several times on the television. The Strasbourg court said (at p 739) that this was an invasion of his privacy contrary to article 8:
"the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on August 20, 1995.""
"The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity."
We do not detect any difference between Lord Hope's opinion in this regard and the opinions expressed by the other members of the appellate committee.
"This test cannot, of course, be applied to a child of the Claimant's age who has no obvious sensitivity to any invasion of his privacy which does not involve some direct physical intrusion into his personal space. A literal application of Lord Hope's words would lead to a rejection of any claim by an infant unless it related to harassment of an extreme kind. A proper consideration of the degree of protection to which a child is entitled under Art. 8 has, I think, for the reasons which I gave earlier to be considered in a wider context by taking into account not only the circumstances in which the photograph was taken and its actual impact on the child, but also the position of the child's parents and the way in which the child's life as part of that family has been conducted. This merely reinforces my view about the artificiality of bringing the claim in the name of the child. The question whether a child in any particular circumstances has a reasonable expectation for privacy must be determined by the Court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their children's lives in a public place should remain private. Ultimately it will be a matter of judgment for the Court with every case depending upon its own facts. The point that needs to be emphasized is that the assessment of the impact of the taking and the subsequent publication of the photograph on the child cannot be limited by whether the child was physically aware of the photograph being taken or published or personally affected by it. The Court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing."
The decision of the judge
i) The test is one of reasonable expectation of privacy: see .
ii) There is no simple rule that the information contained in a photograph is private if taken in a private place but not if taken in a public place: see Campbell: see .
iii) The majority in Campbell reached their conclusion by taking into account the additional information contained in some of the photographs and the accompanying text, namely that she was undergoing treatment for drug addiction, which distinguished the case from what might have been the case if the photographs had simply depicted Ms Campbell on a more banal errand such as a shopping expedition: see .
iv) The facts of this case are different from those in Campbell because here David was being pushed along by his parents on the most ordinary of occasions: see .
v) The facts of this case are very different from those, for example, in Peck v United Kingdom (2003) 36 EHRR 719, where it was held that the release and publication of CCTV footage showing the applicant attempting to commit suicide resulted in the moment being viewed to a far greater extent than he could have foreseen, and this was not publication of a photograph of someone which revealed him in a situation of humiliation or severe embarrassment: see , quoting from Lord Hoffmann in Campbell at [74-75]. See also per Lord Hope at  quoted by the judge at . See also .
vi) The English courts do not recognise a right to a person's own image; so that we have not so far held that the mere fact of covert photography is sufficient to make the information in the photograph confidential; the activity photographed must be private. If Ms Campbell had simply been going about her business in a public street there could have been no complaint. See  quoting Baroness Hale at .
vii) The facts here are indistinguishable from those in Hosking v Runting  1 NZLR 1, where a photographer was commissioned to take photographs of the eighteen month old twins of a well-known television personality being pushed down the street by their mother. The action for breach of confidence failed. See [33-35].
viii) An analysis of Von Hannover showed that the ECtHR took a much wider view of what falls within the scope of an individual's private life than Campbell: see [36-49], especially at [45-49]. We take three examples:
a) it was inherent in the court's analysis that article 8 was engaged by the publication of the whole range of photographs involved in the complaint including apparently innocuous images of the Princess shopping, riding and playing tennis: see ;
b) the important and perhaps novel aspect of the decision is the court's acceptance that the relevant criteria were satisfied in relation to many of the images under consideration, including photographs which (as Lord Nicholls put it) showed nothing untoward or undignified: see ; and
c) an individual's private life can include ordinary activities such as family holidays or expeditions which are not public in any sense beyond the fact that they are conducted in a street or some other public place: see .
ix) In particular, the decision in Princess Caroline's favour did not depend upon harassment or significant press intrusion: see [48-49] and the decision of the ECtHR in Sciacca v Italy (2006) 43 EHRR 20. The judge's own views are summarised at :
"My own reading therefore of Von Hannover is that it recognises that an individual whose life and activities are of public interest may have a legitimate expectation of privacy in relation to private family and personal activities which are not in themselves either embarrassing or intimate in a sexual or medical sense. It also establishes that in the case of someone like the Princess who is well known but not a public figure in the sense of being a politician or the like, the publication of the photographs and the information they contain cannot be justified as a legitimate exercise of the right to freedom of expression where the sole purpose of publication is to satisfy readers' curiosity rather than to contribute to a debate on or the raising of an issue of general public interest or importance."
x) Those views are consistent with those of Buxton LJ in McKennitt v Ash: see [50-57], especially at , where the judge referred to  and quoted [39-42] of McKennitt v Ash, in which Buxton LJ held that the English courts should pay respectful attention to Von Hannover. It was certainly open to Eady J, he said, to have regard to Von Hannover in relation to the very different facts of McKennitt v Ash.
xi) Although Buxton LJ accepted the wider interpretation of Von Hannover, he also accepted Eady J's conclusion at first instance that the more trivial information in the book (eg a shopping trip to Italy) did not qualify for protection under article 8. As the judge put it at , Buxton LJ clearly considered that there must remain a category of cases involving innocuous, unimportant and unremarkable events, which, although private in one sense, do not necessarily qualify for protection under article 8. The judge added that there is, however, no specific guidance (and probably cannot be) as to where precisely the line should be drawn.
xii) This case is an attempt to apply Von Hannover in its most absolutist form: see .
xiii) The critical conclusions reached by the judge are at [65-68].
"65. It seems to me that a distinction can be drawn between a child (or an adult) engaged in family and sporting activities and something as simple as a walk down a street or a visit to the grocers to buy the milk. The first type of activity is clearly part of a person's private recreation time intended to be enjoyed in the company of family and friends. Publicity on the test deployed in Von-Hannover is intrusive and can adversely affect the exercise of such social activities. But if the law is such as to give every adult or child a legitimate expectation of not being photographed without consent on any occasion on which they are not, so to speak, on public business then it will have created a right for most people to the protection of their image. If a simple walk down the street qualifies for protection then it is difficult to see what would not. For most people who are not public figures in the sense of being politicians or the like, there will be virtually no aspect of their life which cannot be characterized as private. Similarly, even celebrities would be able to confine unauthorized photography to the occasions on which they were at a concert, film premiere or some similar occasion.
66. I start with a strong predisposition to the view that routine acts such as the visit to the shop or the ride on the bus should not attract any reasonable expectation of privacy. Although the arguments in favour of freedom of expression have specifically to be considered once a Claimant's Art. 8 rights are engaged, it seems to me inevitable 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. If harassment becomes an issue then it can and should be dealt with specifically as it is by the 1997 Act. I have considerable sympathy for the Claimant's parents and anyone else who wishes to shield their children from intrusive media attention. But the law does not in my judgment (as it stands) allow them to carve out a press-free zone for their children in respect of absolutely everything they choose to do. Even after Von-Hannover there remains, I believe, an area of routine activity which when conducted in a public place carries no guarantee of privacy. In my view this is just such a case. As mentioned earlier, there is no allegation of any direct harm or distress being caused to the Claimant or to his parents at the time and I am not persuaded that his mother's understandable sensitivity to and upset caused by her children being photographed on any occasion can of itself be allowed to dictate what the legal boundaries of protection should be.
67. It is though important to stress the dangers of categorizing various types of information for purposes of defining what is the scope of an individual's private life for the purposes of Art. 8 and I have taken this into account in making my own assessment in this case. Information or events which can in one sense be described as anodyne or trivial may be of considerable importance and sensitivity to a particular person in certain circumstances. Eady J recognized this in McKennitt v Ash and I endorse that approach. It is a matter of fact and degree in every case. But I am not satisfied that the facts pleaded either individually or collectively are sufficient in this case to engage the Claimant's Art. 8 rights.
68. In summary, therefore, I propose to strike out or dismiss the claim based on breach of confidence or invasion of privacy for two reasons: firstly, that on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy; and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and the decision in Campbell, I am bound to follow Campbell in preference. Because I regard this case as materially indistinguishable from the facts in Hosking v Runting I am satisfied that on that test it has no realistic prospects of success. In these circumstances it is not necessary for me to consider the wider issues of freedom of expression or to perform the balancing exercise required by reason of Art. 10."
"v) Editors must not use the fame, notoriety or position of the parent or guardian as sole justification for publishing details of a child's private life."
There is also a publication called The Editors' Codebook, which refers to the Code and to the above statement. Although it is true that the Codebook states (at page 51) in a section headed 'Intrusion' that the Press Complaints Commission has ruled that the mere publication of a child's image cannot breach the Code when it is taken in a public place and is unaccompanied by any private details or materials which might embarrass or inconvenience the child, which is particularly unlikely in the case of babies or very young children, it seems to us that everything must depend on the circumstances.
"the acid test to be applied by newspapers in writing about the children of public figures who are not famous in their own right (unlike the Royal Princes) is whether a newspaper would write such a story if it was about an ordinary person."
It seems to us to be at least arguable that a similar approach should be adopted to photographs. If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent. In our opinion it is at least arguable that a child of 'ordinary' parents could reasonably expect that the press would not target him and publish photographs of him. The same is true of David, especially since on the alleged facts here the Photograph would not have been taken or published if he had not been the son of JK Rowling.
"1. The existence of facts in respect of which there is a reasonable expectation of privacy; and
2. publicity given to those private facts that would be considered highly offensive to an objective reasonable person."
"161. The real concern of the appellants as parents relates not to the publication of photographs of their two children in the street, but to publication of the photographs along with identification and the association of them with a ''celebrity'' parent. We accept the sincerity of their anxiety for the wellbeing of the children and their concern at the prospect of recurring unwanted media attention. They wish to protect the freedom of the children to live normal lives without constant fear of media intrusion. They feel that if publication of the present photographs is prevented there will be no incentive for those who, in the future, might pursue the children in order to capture marketable images.
162. We must focus on the issues now presented. If there is no case for relief now, we cannot address the future. We are inclined to the view, however, that the concerns are overstated.
163. We are not persuaded that a case is made out for an injunction to protect the children from a real risk of physical harm. We do not see any substantial likelihood of anyone with ill intent seeking to identify the children from magazine photographs. We cannot see the intended publication increasing any risk that might exist because of the public prominence of their father.
164. The inclusion of the photographs of Ruby and Bella in an article in New Idea would not publicise any fact in respect of which there could be a reasonable expectation of privacy. The photographs taken by the first respondent do not disclose anything more than could have been observed by any member of the public in Newmarket on that particular day. They do not show where the children live, or disclose any information that might be useful to someone with ill intent. The existence of the twins, their age and the fact that their parents are separated are already matters of public record. There is a considerable line of cases in the United States establishing that generally there is no right to privacy when a person is photographed on a public street. Cases such as Peck and perhaps Campbell qualify this to some extent, so that in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present on the street in particular circumstances. That is not, however, this case.
165. We are not convinced a person of ordinary sensibilities would find the publication of these photographs highly offensive or objectionable even bearing in mind that young children are involved. One of the photographs depicts a relatively detailed image of the twins' faces. However, it is not sufficient that the circumstances of the photography were considered intrusive by the subject (even if that were the case, which it is not here because Mrs Hosking was not even aware the photographs had been taken). The real issue is whether publicising the content of the photographs (or the ''fact'' that is being given publicity) would be offensive to the ordinary person. We cannot see any real harm in it."