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The Law Column: No quick fix in JK Rowling privacy claim

There will be no quick decision in JK Rowling’s privacy claim on behalf of her son.

The House of Lords has refused Big Picture’s petition for leave to appeal against the Court of Appeal’s ruling that the case be allowed to proceed to trial.

It means the media will have no further clarification on the difficult question of non-consensual photography unless the parties press ahead to trial.

The high-profile claim concerns alleged infringement of the child’s privacy and breach of the Data Protection Act 1998 after he was photographed in his pushchair in an Edinburgh street together with his pregnant mother and her husband.

Last year, a High Court judge struck out the claim as unarguable, which was welcomed by the media as limiting ever-increasing privacy rights.

The Court of Appeal then overturned the High Court ruling, leaving the case to proceed to trial.

And last Tuesday, by rejecting the appeal petition, the House of Lords effectively agreed the privacy and data protection claims were eminently arguable. The data protection aspect of the claim is relatively new ground.

Supermodel Naomi Campbell raised similar issues a few years ago in her successful claim against the Daily Mirror over unauthorised street photography of her attending Narcotics Anonymous but they were not explored in depth.

It remains to be seen whether new light will be shed in a publicly-heard trial or uncertainty will continue due to an out-of-court settlement.

Over in the family courts, however, it now seems clear that less privacy could soon be the order of the day. Existing anonymity for children is likely to be preserved but momentum is building for more open reporting.

Commenting on the benefit of more open justice, Sir Mark Potter, President of the courts’ Family Division, recently told The Times: “It is my firm belief that when people see these cases in action, and the extreme care with which they are dealt – and the fact that so much of what is said comes from interested and disgruntled parties not reporting the matter objectively – it can do nothing but good for the system.”

Justice Secretary Jack Straw has also signalled cautious support for greater transparency in family proceedings.


Elsewhere, the Press Complaints Commission (Breaches of Code of Practice) Bill, presented to the House of Commons by MP Jim Sheridan earlier this year, has been dropped as the second reading stage.

The Bill would have created statutory offences in relation to breaches of the PCC’s Code of Practice.

The PCC, unaffected, continues to issue robust and interesting adjudications.

It upheld a complaint that the Barking and Dagenham Recorder breached Clause 3 (Privacy) of the Code by publishing a pixellated photograph of a 17-year-old boy handcuffed in his bedroom, taken by a reporter during a police raid intended to recover stolen goods.

No arrests were made, no stolen goods were recovered, and the boy’s mother said friends recognised both him and the interior of her home despite the pixellation.

Publishing the image was “an error of judgment”, the PCC ruled.

It is the latest in a series of PCC rulings that intrusive images inside people’s homes taken during police raids should not be published without a clear public interest.

In contrast, the PCC has rejected a complaint against the Worksop Guardian over its coverage of the parents of Neil Entwistle who was convicted in the USA for murdering his wife and child.

The mother’s complaint included that she was photographed without consent at a school where she worked by a photographer sitting in a car, in breach of Clause 3.

The PCC decided she had no reasonable expectation of privacy because she was visible and identifiable from the street when the photograph was taken, and the fact that the photographer stayed in the car did not make the image unacceptably clandestine.

The father’s complaint included an allegation that a reporter emailed him after the newspaper had been asked not to contact the couple again, contrary to Clause 4 (Harassment).

The email was sent in connection with a new (albeit erroneous) suggestion that the father was to be disqualified as a district councillor over his attendance record.

The PCC said: “The Commission has never interpreted the Code to mean that people in the news must never again be approached by journalists once they have asked not to be contacted.

“Whether or not an approach is acceptable will depend on the degree of public interest or the extent to which the story has moved on.”

Robust and sensible decisions prevail under self-regulation, despite the fall of Jim Sheridan’s Bill.

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