A judge decided against starting a “revolution” in Britain’s journalism when he threw out a privacy claim by author JK Rowling.

Mr Justice Patten said there was nothing objectionable about the unauthorised publication of a covert, long-lens photograph showing the author’s infant son in a buggy in a public street in Edinburgh.

Rowling and her husband sued picture agency Big Pictures on behalf of their son, who was 18 months old when photographed, alleging breach of confidence, misuse of private information, and breach of the Data Protection Act.

They argued that due to the pro-privacy ruling of the European Court of Human Rights in 2004 in favour of Princess Caroline of Monaco (the ‘Von Hannover’ case), celebrities and their children in UK have a legitimate expectation of privacy when out and about in public for ‘everyday’ activities.

It is the first case where that stark proposition has been tested in court.

Patten J was uncomfortable about accepting such a radical shift in British media culture.

He said: “Some commentators have observed that the unfettered application of this view of Von Hannover ‘would herald a revolution in Britain’s journalistic culture’. I agree.”

He decided, on the facts, that any intrusion from the photography was insufficient to engage the child’s right to privacy under Article 8 of the European Convention on Human Rights.

He threw out the privacy and confidence claims as having “no realistic prospect of success”.

The judge said he was bound to follow the approach taken by the House of Lords in the privacy claim brought by Naomi Campbell in 2004.

Though the House of Lords decided the supermodel’s privacy had been unlawfully infringed by the Daily Mirror’s revelation that she attended Narcotics Anonymous, it also indicated it would have been acceptable for the media to photograph Campbell out shopping.

Lady Hale said: “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.”

The same approach was taken by Mr Justice Eady in 2006 when he refused Sir Elton John an injunction to prevent publication of an unauthorised photograph of the pop star in the street, dressed in a tracksuit and baseball cap.

Eady J said it was a “popping out for a pint of milk” type of case, and Sir Elton could have no reasonable expectation of privacy in respect of the information conveyed by the photograph.

In the same vein, in Rowling’s case [7th August 2007] Patten J said: “If a simple walk down the street qualifies for protection then it is difficult to see what would not.

“For most people who are not public figures in the sense of being politicians or the like, there will be virtually no aspect of their life which cannot be characterised as private.

“Similarly, even celebrities would be able to confine unauthorised photography to the occasions on which they were at a concert, film premiere or some similar occasion.

“I start with 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….it seems to me inevitable that the boundaries of what any individual can reasonably expect to remain confidential or private are necessarily influenced by the fact that we live in an open society with a free press.”

He had sympathy for Rowling and her husband but current law did not allow them to “carve out a press-free zone for their children in respect of absolutely everything they choose do”.

The litigation, seen by Rowling as a ‘test case’, is now headed for the Court of Appeal.

The judge may have reached a different decision on different facts – for example, if Rowling and her family were photographed in a secluded part of a restaurant, or engaged in sporting activities.

English courts have made it clear that there are some circumstances and locations where celebrities will have a legitimate expectation of privacy giving rise to an actionable claim in respect of unauthorised photographs. Each case turns on its facts.

Finally, Rowling’s claim under the Data Protection Act was also thrown out.

No distress or financial loss was suffered by the child through publication, so there was no arguable claim for compensation under the statute, even if Big Pictures had breached certain procedural requirements of the Act.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.