Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| DAVID MURRAY (by his litigation friends NEIL MURRAY and JOANNE MURRAY)
|- and -
|(1) EXPRESS NEWSPAPERS plc (2) BIG PICTURES (UK) LIMITED
for the Claimant
Mr Mark Warby Q.C and Mr Jonathan Barnes (instructed by Solomon Taylor & Shaw)
for the Second Defendant
Hearing dates: 20,21 and 22 June 2007
Crown Copyright ©
Mr Justice Patten :
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.
The English authorities
"50 What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person. There may of course be justifications for the publication of private information by private persons which would not be available to the state-I have particularly in mind the position of the media, to which I shall return in a moment-but I can see no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification. Nor, it appears, have any of the other judges who have considered the matter.
51 The result of these developments has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information. It recognises that the incremental changes to which I have referred do not merely extend the duties arising traditionally from a relationship of trust and confidence to a wider range of people. As Sedley LJ observed in a perceptive passage in his judgment in Douglas v Hello! Ltd  QB 967, 1001, the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity-the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.
52 These changes have implications for the future development of the law. They must influence the approach of the courts to the kind of information which is regarded as entitled to protection, the extent and form of publication which attracts a remedy and the circumstances in which publication can be justified."
" "21 Accordingly, in deciding what was the ambit of an individual's "private life" in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
22 Different forms of words, usually to much the same effect, have been suggested from time to time. The American Law Institute, Restatement of the Law, Torts, 2d (1977), section 652D, uses the formulation of disclosure of matter which "would be highly offensive to a reasonable person". In Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226, 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."
Lord Hope in his speech (at paragraphs 99-100) emphasised the objective nature of the test by contrast to the position taken by the Court of Appeal:
"99 The approach which the Court of Appeal took to this issue seems to me, with great respect, to be quite unreal. I do not think that they had a sound basis for differing from the conclusion reached by the trial judge as to whether the information was private. They were also in error, in my opinion, when they were asking themselves whether the disclosure would have offended the reasonable man of ordinary susceptibilities. The mind that they examined was the mind of the reader: para 54. This is wrong. It greatly reduces the level of protection that is afforded to the right of privacy. The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. 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.
100 In P v D  2 NZLR 591 the claimant was a public figure who was told that publicity was about to be given to that fact that he had been treated at a psychiatric hospital. In my opinion the objective test was correctly described and applied by Nicholson J, at p 601, para 39, when he said:
"The factor that the matter must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities prescribes an objective test. But this is on the basis of what a reasonable person of ordinary sensibilities would feel if they were in the same position, that is, in the context of the particular circumstances. I accept that P has the stated feelings and consider that a reasonable person of ordinary sensibilities would in the circumstances also find publication of information that they had been a patient in a psychiatric hospital highly offensive and objectionable."
That this is the correct approach is confirmed by the Restatement, p 387, which states at the end of its comment on clause (a) of section 652D: "It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises." (Emphasis added.)"
"73 In the present case, the pictures were taken without Ms Campbell's consent. That in my opinion is not enough to amount to a wrongful invasion of privacy. The famous and even 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 by others without their consent. As Gleeson CJ said in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226, 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 719 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 20 August 1995."
75 In my opinion, therefore, the widespread publication of a photograph of someone which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in a public place, may be an infringement of the privacy of his personal information. Likewise, the publication of a photograph taken by intrusion into a private place (for example, by a long distance lens) may in itself by such an infringement, even if there is nothing embarrassing about the picture itself: Hellewell v Chief Constable of Derbyshire  1 WLR 804, 807. As Lord Mustill said in R v Broadcasting Standards Commission, Ex p British Broadcasting Corpn  QB 885, 900, "An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate."
"122 The photographs were taken of Miss Campbell while she was in a public place, as she was in the street outside the premises where she had been receiving therapy. The taking of photographs in a public street must, as Randerson J said in Hosking v Runting  3 NZLR 385, 415, para 138, be taken to be one of the ordinary incidents of living in a free community. The real issue is whether publicising the content of the photographs would be offensive: Gault and Blanchard JJ in the Court of Appeal  NZCA 34, para 165. A person who just happens to be in the street when the photograph was taken and appears in it only incidentally cannot as a general rule object to the publication of the photograph, for the reasons given by L'Heureux-Dubé and Bastarache JJ in Aubry v Éditions Vice-Versa Inc  1 SCR 591, para 59. But the situation is different if the public nature of the place where a photograph is taken was simply used as background for one or more persons who constitute the true subject of the photograph. The question then arises, balancing the rights at issue, where the public's right to information can justify dissemination of a photograph taken without authorisation: Aubry, para 61. The European court has recognised that a person who walks down a public street will inevitably be visible to any member of the public who is also present and, in the same way, to a security guard viewing the scene through closed circuit television: PG and JH v United Kingdom Reports of Judgments and Decisions 2001-ix, p 195, para 57. But, as the court pointed out in the same paragraph, private life considerations may arise once any systematic or permanent record comes into existence of such material from the public domain. In Peck v United Kingdom (2003) 36 EHRR 719, para 62 the court held that the release and publication of CCTV footage which showed the applicant in the process of attempting to commit suicide resulted in the moment being viewed to an extent that far exceeded any exposure to a passer-by or to security observation that he could have foreseen when he was in that street.
123 The same process of reasoning that led to the findings in Peck that the article 8 right had been violated and by the majority in Aubry that there had been an infringement of the claimant's right to respect for her private life can be applied here. Miss Campbell could not have complained if the photographs had been taken to show the scene in the street by a passer-by and later published simply as street scenes. But these were not just pictures of a street scene where she happened to be when the photographs were taken. They were taken deliberately, in secret and with a view to their publication in conjunction with the article. The zoom lens was directed at the doorway of the place where the meeting had been taking place. The faces of others in the doorway were pixelated so as not to reveal their identity. Hers was not, the photographs were published and her privacy was invaded. The argument that the publication of the photograph added credibility to the story has little weight. The photograph was not self-explanatory. Neither the place nor the person were instantly recognisable. The reader only had the editor's word as to the truth of these details."
"154 Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one's own image: cf Aubry v Éditions Vice-Versa Inc  1 SCR 591. We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it. (This was the view of Randerson J in Hosking v Runting  3 NZLR 385, which concerned a similarly innocuous outing; see now the decision of the Court of Appeal  NZCA 34.)
155 But here the accompanying text made it plain that these photographs were different. They showed her coming either to or from the NA meeting. They showed her in the company of others, some of whom were undoubtedly part of the group. They showed the place where the meeting was taking place, which will have been entirely recognisable to anyone who knew the locality. A picture is "worth a thousand words" because it adds to the impact of what the words convey; but it also adds to the information given in those words. If nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place looked like. In context, it also added to the potential harm, by making her think that she was being followed or betrayed, and deterring her from going back to the same place again."
"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."
"50. The court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person's name (see Burghartz v Switzerland  ECHR 16293/90 at para 24), or a person's picture (see Schussel v Austria (App no 42409/98) (admissibility decision, 21 February 2002)),  ECHR 845.
Furthermore, private life, in the court's view, includes a person's physical and psychological integrity; the guarantee afforded by art 8 of the convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, Niemietz v Germany  ECHR 13710/88 at para 29, and Botta v Italy (1998) 4 BHRC 81 at para 32). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life'
51. The court has also indicated that, in certain circumstances, a person has a 'legitimate expectation' of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant 'would have had a reasonable expectation of privacy for such calls' (see Halford v UK (1997) 3 BHRC 31 at para 45).
52. As regards photos, with a view to defining the scope of the protection afforded by art 8 against arbitrary interference by public authorities, the Commission had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public (see, mutatis mutandis, Friedl v Austria  ECHR 15225/89, (1995) 21 EHRR 83, Friendly Settlement, Commission opinion, at paras 49–52; PG v UK  ECHR 44787/98 at para 58; and Peck v UK (2003) 13 BHRC 669 at para 61).
53. In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life.
57. The court reiterates that although the object of art 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the state to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v Netherlands  ECHR 8978/80 at para 23; Stjerna v Finland  ECHR 18131/91 at para 38; and Verliere v Switzerland (App no 41953/98) (admissibility decision, 28 June 2001)),  ECHR 891. That also applies to the protection of a person's picture against abuse by others (see Schussel v Austria (App no 42409/98) (admissibility decision, 21 February 2002)),  ECHR 845.
The boundary between the state's positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, none the less, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation (see, among many other authorities, Keegan v Ireland  ECHR 16969/90 at para 49, and Botta v Italy (1998) 4 BHRC 81 at para 33).
58. That protection of private life has to be balanced against the freedom of expression guaranteed by art 10 of the convention. In that context the court reiterates that the freedom of expression constitutes one of the essential foundations of a democratic society. Subject to art 10(2), it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society' (see Handyside v UK  ECHR 5493/72 at para 49).
In that connection the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart—in a manner consistent with its obligations and responsibilities—information and ideas on all matters of public interest (see, among many authorities, Observer and Guardian v UK  ECHR 13585/88 at para 59, and Bladet Tromso v Norway (1999) 6 BHRC 599 at para 59). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v Austria  ECHR 15974/90 at para 38; Tammer v Estonia (2001) 10 BHRC 543 at paras 59–63; and Prisma Press v France (App nos 66910/01 and 71612/01) (admissibility decision, 1 July 2003)).
59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of 'ideas', but of images containing very personal or even intimate 'information' about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution."
"63. The court considers that a fundamental distinction needs to be made between reporting facts—even controversial ones—capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of 'watchdog' in a democracy by contributing to 'impart[ing] information and ideas on matters of public interest' ...Observer and Guardian v UK  ECHR 13585/88) it does not do so in the latter case.
64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned (see Plon (Societe) v France (App no 58148/00) (judgment, 18 May 2004)); ECHR 200 this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.
65. As in other similar cases it has examined, the court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public (see, mutatis mutandis, Jaime Campmany y Diez de Revenga and Juan Luis Lopez-Galiacho Perona v Spain (App no 54224/00) (admissibility decision, 12 December 2000),  ECHR 696; Julio Bou Gibert and El Hogar Y La Moda JA v Spain (App no 14929/02) (admissibility decision, 13 May 2003); and Prisma Press v France (App nos 66910/01 and 71612/01) (admissibility decision, 1 July 2003)).
66. In these conditions freedom of expression calls for a narrower interpretation (see Prisma Press v France (App nos 66910/01 and 71612/01) (admissibility decision, 1 July 2003), and, by converse implication, Krone Verlag GmbH & Co KG v Austria  ECHR 34315/96 at para 37).
67. In that connection the court also takes account of the resolution of the Parliamentary Assembly of the Council of Europe on the right to privacy, which stresses the 'one-sided interpretation of the right to freedom of expression' by certain media which attempt to justify an infringement of the rights protected by art 8 of the convention by claiming that 'their readers are entitled to know everything about public figures' (see para 42, above, and Prisma Press v France (App nos 66910/01 and 71612/01) (admissibility decision, 1 July 2003)).
68. The court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken—without the applicant's knowledge or consent –and the harassment endured by many public figures in their daily lives cannot be fully disregarded (see para 59, above).
In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down (see para 17, above). It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists and photographers' access to the club was strictly regulated (see para 33, above).
69. The court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being's personality. That protection—as stated above—extends beyond the private family circle and also includes a social dimension. The court considers that anyone, even if they are known to the general public, must be able to enjoy a 'legitimate expectation' of protection of and respect for their private life (see para 51, above and, mutatis mutandis, Halford v UK (1997) 3 BHRC 31 at para 45).
73. Lastly, the distinction drawn between figures of contemporary society 'par excellence' and 'relatively' public figures has to be clear and obvious so that, in a state governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press.
74. The court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant's private life effectively. As a figure of contemporary society 'par excellence' she cannot—in the name of freedom of the press and the public interest—rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life.
75. In the court's view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case merely classifying the applicant as a figure of contemporary society 'par excellence' does not suffice to justify such an intrusion into her private life."
"76. As the court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life.
77. Furthermore, the court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.
Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the court's view, yield to the applicant's right to the effective protection of her private life.
78. Lastly, in the court's opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant's private life and she should, in the circumstances of the case, have had a 'legitimate expectation' of protection of her private life.
79. Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the state in this area, the court considers that the German courts did not strike a fair balance between the competing interests.
80. There has therefore been a breach of art 8 of the convention."
"Regarding whether there has been an interference, the Court reiterates that the concept of private life includes elements relating to a person's right to their picture and that the publication of a photograph falls within the scope of private life. It has also given guidelines regarding the scope of private life and found that there is:
"a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life'.
In the instant case the applicant's status as an "ordinary person" enlarges the zone of interaction which may fall within the scope of private life, and the fact that the applicant was the subject of criminal proceedings cannot curtail the scope of such protection."
The Post Von-Hannover English authorities
"In the light of these cases, a trend has emerged towards acknowledging a 'legitimate expectation' of protection and respect for private life, on some occasions, in relatively public circumstances. It is no longer possible to draw a rigid distinction between that which takes place in private and that which is capable of being witnessed in a public place by other persons."
"This would strongly suggest that the mere fact that information concerning an individual is 'anodyne' or 'trivial' will not necessarily mean that art 8 is not engaged. For the purpose of determining that initial question, it seems that the subject matter must be carefully assessed. If it is such as to give rise to a 'reasonable expectation of privacy', then questions such as triviality or banality may well need to be considered at the later stage of bringing to bear an 'intense focus' upon the comparative importance of the specific rights being claimed in the individual case. They will be relevant to proportionality.
Whether, in any given circumstances, an individual citizen can have a reasonable expectation that his privacy will be protected may depend simply upon the nature of the information itself or, on the other hand, it may depend upon a combination of factors. Sometimes such an expectation will arise from the circumstances in which the information has been voluntarily imparted to another person or persons. In particular, the expectation may be justified by a duty of confidence arising expressly or by implication at the time."
"…..trivial and of no consequence, and unlike relatively trivial but intrusive descriptions of a person's home, there is no need for the law to step in and offer protection. Nor is it likely to cause significant distress or other harm to say, of a celebrity or anyone else, that a friend accompanied her on a shopping trip and managed to bargain with vendors to save money. It is anodyne, and not such as to attract any obligation of confidence. I do not even need to ask whether there is any public interest-although, of course, there is not."
" Eady J suggested, at his para 58, that that approach was consistent with the assumption in Campbell that art 8 protected a person's reasonable expectation of privacy. That is so in broad terms, but at the same time it is far from clear that the House of Lords that decided Campbell would have handled Von Hannover in the same way as did the ECtHR. Very extensive argument and discussion was seen as required before Ms Campbell was able to enjoin the publication of photographs of her in the public street, and then only because of their connexion with her medical condition. Had the House had the benefit of Von Hannover a shorter course might have been taken.
 That does not however mean (to anticipate an argument that will arise again under art 10) that the English courts should not now give respectful attention to Von Hannover. The House of Lords in Campbell made no specific findings as to the content of art 8 save in the very general terms extracted by Eady J. As it is put in a work shown to us by the media parties, Professor Fenwick and Mr Phillipson's Media Freedom Under the Human Rights Act (2006), at p 764, "the test propounded-of a reasonable expectation of privacy, of whether the information is obviously private-is to be structured by reference to the art 8 case law". It thus remains for the national court to apply that case law, as it currently stands, to the facts before it. It was therefore certainly open to Eady J to have regard to Von Hannover in relation to the very different facts of the present case.
 Perhaps realising the force of observations such as the foregoing, the media parties, in particular, were most anxious to persuade us that the ECtHR went no further in Von Hannover than to hold that the Princess's privacy had been invaded by a campaign of media intrusion into her life, of which the enjoined photographs were the fruit. The taking and publication of the photographs would otherwise not have been in itself an invasion of privacy. They cited in support some observations of Fenwick and Phillipson at p 768 of their book, though it is fair to say that the learned authors also say that that analysis is not without its difficulties. The judge, at his para 53, did not accept that analysis, nor would I. While it is quite correct that there is reference in the judgment of the ECtHR to media intrusion, it is not possible to say that the general statements of principle set out in para 38 above are so limited. And Mr Browne was able to show us authority from the ECtHR decided since Von Hannover that applies those statements in situations that were not ones of media intrusion. Of those, the most significant is Sciacca v Italy (Application 50774/99), paras 27 and 29 of the judgment of the ECtHR applying Von Hannover to a case that was not one of press harassment, and citing the jurisprudence of Von Hannover in entirely general terms.
 I would therefore conclude that to the extent that it is the Appellant's case that the judge should not have had regard to Von Hannover when considering the first question of whether art 8 was engaged; and to the extent if at all that the issue matters for the determination of this part of the case; that complaint is unfounded."
"It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.
44 There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply."
Data Protection Act
"data which relate to a living individual who can be identified—
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual"
"1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met."
(1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.
(1) Subject to paragraph 3, for the purposes of the first principle personal data are not to be treated as processed fairly unless—
(a) in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3), and
(b) in any other case, the data controller ensures so far as practicable that, before the relevant time or as soon as practicable after that time, the data subject has, is provided with, or has made readily available to him, the information specified in sub-paragraph (3).
(2) In sub-paragraph (1)(b) "the relevant time" means—
(a) the time when the data controller first processes the data, or
(b) in a case where at that time disclosure to a third party within a reasonable period is envisaged—
(i) if the data are in fact disclosed to such a person within that period, the time when the data are first disclosed,
(ii) if within that period the data controller becomes, or ought to become, aware that the data are unlikely to be disclosed to such a person within that period, the time when the data controller does become, or ought to become, so aware, or
(iii) in any other case, the end of that period.
(3) The information referred to in sub-paragraph (1) is as follows, namely—
(a) the identity of the data controller,
(b) if he has nominated a representative for the purposes of this Act, the identity of that representative,
(c) the purpose or purposes for which the data are intended to be processed, and
(d) any further information which is necessary, having regard to the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair."
"personal data consisting of information as to—
(a) the racial or ethnic origin of the data subject
(e) his physical or mental health or condition,
(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject."
It seems to me that "necessary" in this context means no more than that the processing should be required to be proportionate to the legitimate interests pursued by the data controller and I accept Mr Warby's submission that the pursuit of a legitimate business is a legitimate interest for these purposes. This condition seems to me to replicate the considerations which the Court has routinely to take into account under Art. 8 and Art. 10 and it is therefore satisfied in this case. For the reasons already given, I do not consider that the Claimant's rights under Art. 8 in this case outweigh BPL's rights to freedom of expression.
"However, it should not be understood that I am ruling that images whether photographic or otherwise that disclose, whether from physical characteristic or dress, racial or ethnic origins cannot amount to sensitive personal data."
"….a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;
data which relate to a living individual who can be identified—
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;…."
It does not depend on registration and in my judgment the provisions of s. 4(4) continued to bind BPL notwithstanding its failure to register. The sanction for non-registration is the specific criminal penalty under s. 21.
"The law recognises that damages are not always a sufficient remedy for breach of contract. This is the foundation of the court's jurisdiction to grant the remedies of specific performance and injunction. Even when awarding damages, the law does not adhere slavishly to the concept of compensation for financially measurable loss. When the circumstances require, damages are measured by reference to the benefit obtained by the wrongdoer. This applies to interference with property rights. Recently, the like approach has been adopted to breach of contract. Further, in certain circumstances an account of profits is ordered in preference to an award of damages. Sometimes the injured party is given the choice: either compensatory damages or an account of the wrongdoer's profits. Breach of confidence is an instance of this. If confidential information is wrongfully divulged in breach of a non-disclosure agreement, it would be nothing short of sophistry to say that an account of profits may be ordered in respect of the equitable wrong but not in respect of the breach of contract which governs the relationship between the parties. With the established authorities going thus far, I consider it would be only a modest step for the law to recognise openly that, exceptionally, an account of profits may be the most appropriate remedy for breach of contract. It is not as though this step would contradict some recognised principle applied consistently throughout the law to the grant or withholding of the remedy of an account of profits. No such principle is discernible."