Rowling privacy win confirms proper test for privacy, says expert

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A Court of Appeal ruling in Rowling's favour has reinforced the circumstances in which people are entitled to the protection of Article 8 of the European Convention on Human Rights (ECHR), said Rosemary Jay, head of the information law team at Pinsent Masons, the law firm behind OUT-LAW.COM.

"The Court of Appeal has confirmed that Article 8 is engaged whenever people have a 'reasonable expectation of privacy' and that can occur at quite an ordinary level, which is very helpful," she said.

Rowling took the case with her husband on behalf of her son, David Murray, who was part of a photograph of the family on the street in 2004 that was published in 2005. At the time of the photo, David was 19-months-old.

It was argued on behalf of David that he had not sought publicity and that the photograph of him should not have been published in the Sunday Express.

The newspaper settled with the family, but agency Big Pictures contested the case.

The High Court had thrown the case out before trial, but the Court of Appeal said that there was a case to answer and a full trial should be heard.

Since Naomi Campbell won her case against The Mirror newspaper, Article 8 of the ECHR, which guarantees the right to a private life, has applied directly to individuals.

"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," said Sir Anthony Clarke in his ruling, paraphrasing Lord Nicholls's judgment in the House of Lords in the Campbell case.

A person must demonstrate, though, that their rights to privacy are 'engaged' even before they decide whether someone else's behaviour has violated those rights, and courts have looked at this questions in different ways in the past. One approach has been to consider whether the other person's behaviour 'would be highly offensive to a reasonable person'.

The other approach has been to consider whether a person has 'a reasonable expectation of privacy' in the activity which has been publicised.

The first approach makes it more difficult for people to complain of a breach of privacy when unauthorised photographs are taken or disclosures made if they have only been engaged on everyday activities, rather than anything particularly sensitive.

In this case, however, the Court of Appeal said that the correct test to use was to think about whether the person involved had a reasonable expectation of privacy.

"As applied in this case … the first question at any trial of the action would be whether article 8 was in principle engaged; that is whether David had a reasonable expectation of privacy," said Sir Anthony. "On Lord Nicholls' analysis, that is a lower test than would be involved if the question were whether a reasonable person in his position would regard publication as either offensive or highly offensive."

"This has not been completely clear in the past," said Jay. "Even though this is a ruling on whether a trial can go ahead, in reality people will look at this from the Court of Appeal and pay attention to it."

The case was specifically about the rights of David as a child. Rowling had not claimed that she deserved the same protection. Sir Anthony said that for this reason the Court's ruling should not be seen as the creation of a new kind of privacy law.

"It is in our opinion of some importance that the action was brought by David’s parents only on behalf of David and not on their own behalf," wrote Sir Anthony.

"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."

The ruling said: "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.

[…] it seems to us that David may have a reasonable expectation of privacy in circumstances in which his famous mother might not."

There have been some fears in recent privacy cases that courts were creating an image right, the right of celebrities to exert control in all circumstances of how their image is captured and used. Sir Anthony said that this was not the aim and would not be the result of this ruling.

"It is our opinion that the focus should not be on the taking of a photograph in the street, but on its publication.

In the absence of distress or the like caused when the photograph is taken, the mere taking of a photograph in the street may well be entirely unobjectionable," he said.

"We do not therefore accept, as the judge appears to suggest in [in the High Court case], that, if the claimant succeeds in this action, the courts will have created an image right."

The Court also suggested that its decision here will not give anyone who happens to be on a street the right to object to the taking or use of a photograph on that street, a subject which could become controversial if Google launches its Street View service in the UK. Sir Anthony referred to Press Complaints Commission (PCC) guidelines and to its Editors' Codebook.

"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," he said.

He continued to draw a distinction between photographs which targeted an individual and those that did not. In relation to the Campbell case, he wrote: "if the photographs had been taken, as Lord Hope put it [in the Campbell ruling], to show the scene in a street by a passer-by and later published as street scenes, that would be one thing, but they were not taken as street scenes but were taken deliberately, in secret and with a view to their subsequent publication. They were taken for the purpose of publication for profit, no doubt in the knowledge that the parents would have objected to them."

The Court found that a child can have a heightened expectation of privacy from the expectations of an adult regardless of the identity of its parents, and Sir Anthony said that this should not be undermined just because JK Rowling is famous.

"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," he said. "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."