JK Rowling’s recent privacy victory for her son has implications for picture editors across the regional and national press. The pro-privacy steer given by the Court of Appeal means unauthorised photographs of individuals, particularly children, could increasingly trigger complaints and litigation.

In an indication of the case’s wide relevance, the court noted that regional paper the Western Daily Press was among those that published the contentious image and received a complaint from the Harry Potter author’s solicitors.

The novelist brought the claim on behalf of her son, David, who was photographed by agency Big Pictures (UK) Ltd as he was pushed in a buggy along an Edinburgh street. A colour photograph of the family group was published in the Sunday Express magazine.

In the claim against Express Newspapers and Big Pictures, David, who was 19-months-old when photographed, asserted a breach of his right to respect for his privacy under Article 8 of the European Convention of Human Rights.

Express Newspapers settled, leaving the claim against the picture agency, which was struck out last year in a pro-media ruling by a judge who admitted having “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”.

But this month the Court of Appeal said: “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.”

Allowing the claim to proceed to trial, the court speculated that if the assumed facts were correct, the European Court of Human Rights (ECtHR) would probably find David did have a reasonable expectation of privacy and that it had been unlawfully infringed, even taking into account the media’s right to freedom of expression.

It means publishing unauthorised pictures of any children is now extremely risky, and courts will be amenable to arguments that celebrities, ‘ordinary’ people, and their respective children, have a reasonable expectation of privacy when going about their everyday activities in public.

The Court of Appeal said that a reasonable expectation of privacy consisted of various factors, including “the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher”.

Fortunately for the press, however, claimants also have to show their Article 8 privacy right outweighs the media’s Article 10 free speech right – and that provides scope for public interest arguments.

The case does not spell an automatic end to non-consensual street photography. The appeal court accepted the mere taking of a photograph in the street, without distress or harassment, “may well be entirely unobjectionable”.

It also noted an entry in The Editors’ Codebook (accompanying the Press Complaints Commission’s Code) that the PCC felt mere publication of a child’s image cannot breach the Code when taken in a public place and unaccompanied by private details or information that might embarrass or inconvenience the child.

But the court emphasised that in privacy law, everything depends on the circumstances.

It may be fine, it indicated, to take photographs to show a scene with people in a street which were later published as street scenes, but that was different from secretly taking photographs of people with a view to publishing them for profit in the knowledge that consent was unlikely to be forthcoming.

So, more fragments of our growing privacy law have been sketched in, under the over-arching influence of the pro-privacy ruling of the ECtHR in 2004 in favour of Princess Caroline of Monaco.

Picture desks in all areas of the media will increasingly have to weigh privacy risks, even where infant children are concerned.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]

Comments

Stuart Morton (08/06/2008 12:55:46)
What surprises me about this story, from the perspective of being the person who actually shot the picture of JK and the family in question is that it was not taken using long lens photography and i was standing in the middle of the street when it was shot, not hidden away, and I have never by either the agency of the newspapers been asked for a statement in relation to this story.

Bernard O`Mahoney (08/07/2008 12:31:25)
I recently published a true crime book and whilst researching it I applied to visit a prisoner. A visiting order was issued but when i arrived at HMP Chelmsford admission was denied without reason. A friend accompanying me took a photograph on a small digital camera of me talking to a prison officer outside the main entrance to the prison. The photo was used in conjunction with the story in the book that the authourities appeared to be gagging the prisoner by prohibiting visits from the media. the book was published in may 08 and yesterday i was informed the prison officer depicted in the photo is suing for damages. He claims he is facing disciplinary charges from the Guvnor if he does not take action! The officer is not named in the book nor is he as an individual commented on. Surely if he succeeeds the days of photographing prisoners being led into court etc by prison officers/police are no more? bernard 07919151295