Breach of Privacy: Court of Appeal upholds damages award for breach of children’s privacy

On 20 November 2015 in Weller and others v Associated Newspapers Limited [2015] EWCA Civ 1176 the Court of Appeal upheld a decision of the High Court and found that Associated Newspapers (the publishers of MailOnline) had infringed the privacy of three of the musician Paul Weller’s children by publishing un-pixelated photographs of them out shopping in California with their father.

The High Court had found that the defendant was liable for misuse of private information and/or for breach of the Data Protection Act 1998 and awarded total damages of £10,000 (£5,000 to 16 year old Dylan, and £2,500 each to John-Paul and Bowie, 10 month old twins).  An injunction against further publication was also granted at a later hearing.

The article itself had been published in October 2012, and included photographs of Paul Weller and the children in California, both shopping in the street and relaxing in a café. At the time of the incident, when Paul Weller became aware of the presence of a photographer, he approached him and was assured that any published photographs would be pixelated. He did not at any time give his consent to the taking of the photographs.

The Appeal

The defendant appealed against both the finding of liability and the granting of the injunction. The main issues advanced by the defendant were (i) whether the publishing of an “innocuous” photograph of a child taken in a public street without consent gives rise to a reasonable expectation of privacy, even in circumstances where nothing inherently private is shown, and (ii) whether the High Court adequately considered the fact that the taking and publishing of the photographs would have been lawful in California.

The Court of Appeal  decision

The Court of Appeal considered the usual test of whether the relevant individuals had a reasonable expectation of privacy. It concluded: (i) that a child does not have a separate right to privacy merely by virtue of being a child, (ii) the broad approach to this test should be the same for adults and children, however there are some particular considerations relevant to children that in certain circumstances make it more likely they will have a reasonable expectation of privacy than an adult, and (iii) all the circumstances of the case should be considered.

When considering the application of this test to children, their age is of particular relevance, particularly for very young children who are reliant on their parents to exercise their right to privacy. As children become older they are able to develop their own personality and public profile. A child’s reasonable expectation of privacy is very much dependent on how his/her family life is conducted, however very young children have a reasonable expectation of privacy even in public.

The parents’ lack of consent, if known to the publishers, is a relevant factor to take into consideration. It is also important to consider the security concerns of a child, particularly if they are with a famous parent, as well as the potential for them to suffer bullying and embarrassment (as occurred in this case).

The Court of Appeal conducted a balancing exercise between the article 8 rights of the children and the article 10 rights of the defendant.  It held that the “primacy” of the child’s best interests meant that it would require very powerful article 10 rights to outweigh a child’s article 8 rights in circumstances where publication would be harmful to the child.

The Court of Appeal agreed with the first instance decision in concluding that the children had a reasonable expectation of privacy and the damages awards were upheld.  The Court found that the reasonable exception of privacy [of children whose parents were in the public eye] could not be different from that of a child whose parents are not in the public arena, unless the parents have courted publicity for the child.

The Court held that it was important to take into account the fact that it was lawful to take the photographs under the law of California, however the first instance judge had done this and, in any event, it should not be accorded significant weight given that the twins’ connection to California was slight especially when compared to the parents’ connection to England.

Comment

This decision builds on the principles established in Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 in determining the privacy rights of children.  Weller did not create a specific ‘image right’ for children in English law, however it did highlight the particular protection given to children with regards to their privacy rights, and emphasised the importance of taking into consideration a child’s best interests. The fact that this case involved a ‘family outing’ distinguished it from Campbell v MGN Limited [2004] UKHL 22 and John v Associated Newspapers Ltd [2006] EMLR 27, particularly when it clearly did not contribute to a current debate of general interest.

At first instance the Court focused on the children’s facial expressions and the ‘range of emotions’ displayed, however the Court of Appeal emphasised the private nature of the activity (particularly when consent to publish the photographs un-pixelated was expressly denied at the time), and the fact that the claimants were children, with a particular focus on their safety and security.

This decision highlights the necessity for publishers to exercise caution when considering whether to publish photographs of children, particularly if they are engaged in a ‘family’ activity.

Brett Wilson LLP is a law firm with experienced privacy solicitors, and can assist you if your privacy or or your children’s privacy has been breached. Click here to find out how we can help.