Whenever a story or photograph is published, one of the main considerations in the newsroom should be whether the subject has a right to privacy. And if so, is an invasion of privacy justified? A recent decision from the country’s most senior court, the Supreme Court, has muddied the waters and arguably widened the factors that need to be taken into consideration when dealing with the issue.

Firstly, the facts of the case…

A teenager brought the case against the police, arguing that the police breached his Article 8 right to respect for private and family life (commonly referred to as the “right to privacy”) by publishing CCTV photographs of him. The Justices in the case described the photos as showing the teenager “in the course of rioting”.

The photographs were released by the police and then published in two local newspapers.

The police’s defence was that the images were only taken and published in order to identify the alleged perpetrators of crime, and were only circulated for the legitimate purpose of preventing and detecting crime.

The Supreme Court ruled that the teenager’s right to privacy was engaged, but that the interference was justified because it was not excessive and was necessary for the administration of justice. An important factor was that the police only released the photographs as a last resort in trying to identify the perpetrators.

I think many of us would agree that, in the circumstances, the overall result is the correct one – the teenager’s appeal was unanimously dismissed.

When looking at the right to privacy, the starting point has always been whether there “is a reasonable expectation of privacy”. However, the important element of this case is that the Justices had differing opinions on whether the “reasonable expectation of privacy” test is the touchstone when looking at whether the right to privacy is engaged – and this is why the decision could lead to uncertainty in the future.

Two Justices said that reasonable expectation of privacy should not be elevated to a position of “unique and inviolable influence” to exclude all other factors from consideration. The other factors they suggested for consideration included: the age of the person involved; whether there was consent to the publication; whether the publication would criminalise or stigmatise the person; the context in which the portrayed activity took place; and any others circumstances in the case.

The same two Justices noted that the reasonable expectation of privacy will still have considerable weight, but that it is not, and should not be, an “inflexible, wholly determinative test”. In this case, they noted that the focus should not be what the teenager was doing, but on the effect that publication of the photographs would have on him.

Two other Justices ruled that the right to privacy was not engaged at all, because the reasonable expectation of privacy test was indeed the touchstone, and the test already takes into account all of the circumstances of the case. I am inclined to agree, but that is neither here nor there.

So where does this decision leave working journalists and photographers? One interpretation is that nothing has changed, and the law remains the same. After all, the Court unanimously agreed that the teenager did not have a case against the police for breach of privacy.

On the other hand, in one of the minority judgments, the two Justices placed greater consideration on the wider circumstances of the case, above and beyond the reasonable expectation of privacy test.

The answer to my question is probably that in the short term, nothing has changed. But the minority judgments have left the way open for future subjects of legitimate journalistic enquiries and photos to argue that their right to privacy has been engaged (and infringed) because factors other than mere “reasonable expectation of privacy” have to be taken into account.

I fear that this is not the last we have heard on this subject……………