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27.05.13

Court of Appeal holds public has a right to know about Boris Johnson's lovechild

In AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 the Court of Appeal considered an appeal brought on behalf a three-year old child (via her maternal step-grandfather) against the decision of Mrs Justice Nicola Davies in her privacy claim against the owners of the Daily Mail.

The High Court claim concerned the publication of private information relating to the issue of the claimant's paternity.  It stemmed from an article published in the Daily Mail on 16 July 2010 and eight subsequent articles.  Each article suggested that the claimant was the daughter of Boris Johnson.  Three of the articles included a photograph of the claimant being pushed in a buggy by her mother.

Nicola Davies J awarded the claimant £15,000 damages for breach of her privacy in relation to the photographs only.  No damages were awarded for the disclosure of information relating to the claimant's paternity and the claimant was refused injunctive relief preventing the further disclosure of the information.  The Defendant gave an undertaking to the court that further photographs would not be published.

The Claimant appealed on the following bases:

(1) that the judge had not properly assessed the claimant's best interests

(2) that the judge had been wrong to decide that the claimant had a lesser expectation of privacy because of discussions her mother had had concerning her paternity at a house party and because she had a participated in a magazine interview which touched upon the issue of paternity.

(3) that it was wrong for the judge to hold that the claimant's expectation of privacy was outweighed by the public interest in the 'recklessness' of the father.

(4) that the judge was wrong to say that a 'public domain' defence did not apply (i.e. that there was no point in granting an injunction as the information was already in the public domain).

The Defendant did not appeal against the award of damages made against it in relation to the publication of the photographs.

The Court of Appeal dismissed the appeal finding that Nicola Davies J's findings were 'unassailable'.  In particular, the Court of Appeal noted:-

(a) That it was appropriate to consider the conduct of the claimant's mother and that the Judge had been right to find her attitude to the Claimant's privacy had been ambivalent.

(b) That the Judge had performed the appropriate balancing act between Article 8 and Article 10 rights ('right to privacy' and 'freedom of expression').  It was inappropriate for an appellate court to intervene with a finding following such an exercise unless the judge had erred in principle or reached a conclusion that was obviously wrong.

(c) The judge was entitled on the evidence before her to find that the claimant's expectation of privacy relating to her paternity was outweighed by the public interest in the father's reckless behaviour.  It was noted that this was not the first time the claimant's father had fathered a child after a 'brief adulterous affair'.

The Master of the Rolls said in conclusion:-

"...The core information in this story, namely that the father had an adulterous affair with the mother, deceiving both his wife and the mother's partner and that the claimant, born about 9 months later, was likely to be the father's child, was a public interest matter which the electorate was entitled to know when considering his fitness for high public office."

A full copy of the judgement can be found below:-

http://www.bailii.org/ew/cases/EWCA/Civ/2013/554.html


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