On 20 May 2013, the Court of Appeal handed down judgment in AAA v Associated Newspapers ( EWCA Civ 554). It held that the Claimant, a child, did not have her rights under Article 8 breached by an article in the Daily Mail which speculated that her father was Mayor of London, Boris Johnson. The Judgment raises interesting questions as to the extent to which the behaviour of a child’s parent affects the former’s expectation of privacy.
The Claimant is the young daughter of an unmarried professional art consultant. Her paternity was the subject of speculation in an article published in the Daily Mail, which also published a photograph of the Claimant being pushed in a buggy by her mother. Nicola Davies J awarded £15,000 in damages in respect of the photograph. However, she found that the Claimant had a reduced expectation of privacy in respect of the information about her father because of (1) her mother’s allusions to her daughter’s paternity at a party and during a magazine interview; and (2) the public interest in publishing the information. She therefore found that the publication was justified and did not breach the Claimant’s rights under Article 8 ECHR. As a result, neither damages nor an injunction preventing further publication of the information was awarded.
Grounds of Appeal
The Claimant appealed against the dismissal of her claim for damages and the refusal to grant an injunction. She did so on the following grounds:
- The judge failed to make any or proper assessment of the claimant’s best interests in relation to media attention and media publication of information or speculation concerning her paternity and related private information;
- The judge was wrong to hold that the mother’s conversations at the party and during the magazine interview reduced the Claimant’s expectation of privacy;
- The judge wrongly held that the claimant’s (weakened) expectation of privacy was outweighed by the public interest in the recklessness of her father; and
- The judge was wrong to hold that there was a public domain defence for publication of the defendant’s subsequent articles and that an injunction to prevent any further publication of information about the claimant’s paternity would serve no real purpose.
The Court of Appeal, the Master of the Rolls, LLJs Tomlinson and Ryder sitting, rejected the Claimant’s appeal on all four grounds.
On the first ground, the Court of Appeal first considered the judgment in K v News Group Newspapers ( EWCA Civ 439), which approves the approach of Lord Kerr in ZH (Tananzia) v Secretary of State for the Home Department ( UKSC 4) in the context of an application for a privacy injunction, namely that where a decision will affect a child, the best interests of that child are paramount and may only be displaced by “countervailing considerations of considerable force” [10-11]. The Court of Appeal noted that Davies, J had cited both authorities in her original judgment as well as the relevant parts of the PCC Editors’ Code of Practice. She had come to the conclusion that, while Article 8 was engaged, as a small child the autonomy of personal information was exercised on her behalf by her mother.  In this case, she held that the case was not conducted as a “best interests of the child case” and indeed very little evidence had been adduced as to whether keeping the information as to the Claimant’s paternity private was in fact in her best interests. 
However, the Court of Appeal could not conclude that the judge below had failed to make a detailed assessment of the Claimant’s best interests. She made explicit reference to those interests in her Judgment and had attached to them “considerable weight”.  In the view of the Court of Appeal:
“It was sufficient that she recognised that (i) the Claimant had a reasonable expectation of privacy in relation to her paternity, (ii) respect for this expectation was in her best interests and (iii) considerable weight was to be attached to her best interests. On the material that was before her, she could not be expected to have done more.” 
Moreover, the Court of Appeal considered that “reasonable expectation of privacy” and “best interests” were essentially the same thing and Davies J had explained why the right to be attached to the former (and therefore best interests) was reduced by virtue of the mother’s behaviour. 
On the second ground, the judge had been entitled to take into account any relevant conduct of the Claimant’s mother in assessing the strength of her reasonable expectation of privacy (cf Murray v Express Newspapers plc  EWCA Civ 440. This was not in dispute between the parties. The relevant conduct in question arose out of two separate events. The first was at a private house party at which she identified the Claimant’s father to the President of Conde Nast. In Davies J’s view, this pointed “to an inconsistency or ambivalence in her approach to the issue of speculation concerning the paternity of her daughter.” 
The Court of Appeal held that the judge had been right to take this information into account. Although it took place in the context of a private party, the disclosure was made to an individual unknown to the Claimant’s mother and “the facts of the case were not analogous to sharing confidential information with a close friend.” 
The second instance concerned disclosures made in the context of an interview with T Magazine. The article was published a few months after the Daily Mail article and contained references to her relationship with the father and the fact that he was alleged to be the father of the Claimant, although she did not confirm his identity and emphasised that she considered it to be private information.
Nicola Davies J had considered the events leading up to the publication of this article to be material. In particular, the mother’s alleged “ambivalence” during a lunch meeting with the magazine’s editor about identifying the father – while she did not want to be seen to talk about it, she did not mind it being mentioned, her email expressing disappointment that her lawyers had advised her against publishing photographs of the Claimant in the article, and her willingness to allow the article to go ahead, despite knowing that they intended to make reference to the news story about the Claimant’s paternity. She formed the view that the mother was
“torn between two competing factors:
(a) A wish to inform certain individuals, if not of the father’s identity, then at least to point them in a certain direction in order to ‘set the record straight’; and
(b) The stated aim in these proceedings which is, for the present, to keep the matter a secret save for family and close friends.”
She concluded that she had “not resolved this particular conflict”. [Nicola Davies J, at 28-29]
The Court of Appeal rejected the argument that the judge had failed to take into account the fact that the mother’s attitude was affected by the fact that the Daily Mail article had already put the Claimant’s paternity into the public domain and held that “the judge’s assessment is unassailable.” [33-34] The judge had seen the evidence first hand and it was not for the Court of Appeal to second guess her conclusions as to the credibility of the Claimant’s mother and the inferences she was able to draw as a result of her behaviour in relation to the two events above. [34-36] The second ground of appeal was rejected accordingly.
On the third ground, whether the judge correctly carried out the balancing exercise between Article 8 and Article 10, the Claimant had argued that the public interest could have been satisfied by a discussion of Mr Johnson’s affairs and philandering without the need to identify the Claimant. The charge of “recklessness” did not seem to relate to the fact of the Claimant’s conception and the circumstances surrounding it, but rather the fact of his extra-marital affairs. [40-42]
The Court of Appeal rejected this argument on the basis that it gave too narrow an interpretation of what the judge meant by “recklessness” in this context.  Although she could have been more explicit in setting out what she meant by “recklessness”:
“ It was not material to the judge’s conclusion whether contraceptive precautions were taken. What was material was that the father’s infidelities had resulted in the conception of children on two occasions. The judge was entitled to hold that this was of itself reckless behaviour, regardless of whether any contraceptive precautions were taken.” 
Given the reduced expectation of privacy and the fact that the Court of Appeal should be slow to interfere in the trial judge’s assessment of balance in circumstances where she has had the benefit of seeing the evidence first hand, no criticism could be levelled at the way in which the judge approached the “difficult and sensitive balancing exercise”. 
Finally, the Claimant challenged Nicola Davies J’s finding that it was not the case that the Daily Mail “opened the floodgates” for speculation about the Claimant’s paternity. It was argued that nothing had appeared in the media on the subject prior to that publication and there was no evidential basis to find that the story would have been published anyway.
The Court of Appeal rejected this argument. The judge made a finding of fact that other newspapers were moving towards a similar story and there was an evidential basis for that finding. The Court of Appeal would not disturb it.
The Court of Appeal concluded that much of what has been written about the Claimant’s paternity remains online and the injunction sought would only prevent the defendant from referring to the information where other media organisations have published the same thing. The information would not simply fade from the public eye if the Defendant were no longer allowed to publish it.
Although on first glance, the Court of Appeal’s judgment may seem at odds with the notion that a young child should not have her paternity “ousted” by a national newspaper, the result is not surprising. Much of the judgment appears constrained by the Court of Appeal’s limited role in relation to disturbing findings of fact and conclusions on the evidence drawn by the trial judge.
Nonetheless, I am not convinced by the Court of Appeal’s conflation of “reasonable expectation of privacy” with “best interests of the child”. Although obviously interrelated, the latter implies greater weight to be placed on “best interests” over the “public interest in publication.” This is evident from Lord Kerr’s speech in ZH Tanzania that only “considerable countervailing interests” or, in the words of the PCC Code “exceptional public interest” can outweigh a child’s best interests. The Court of Appeal doesn’t really engage with the apparently heightened public interest burden in cases involving children. Of course part of the problem in this case appears to be the lack of evidence as to the child’s best interests at trial. In these circumstances, the Court of Appeal’s hands were tied by the findings of fact made by Davies J, particularly in relation to the mother’s conduct.
In future, it may be advisable for child Claimants to frame their case more in terms of “best interests” than “reasonable expectation of privacy” and adduce evidence accordingly. There is no doubt that in AAA, there was a considerable public interest in knowing that the Mayor of London had fathered another child as a result of an extra marital affair. There was also little evidence as to what her best interests were – although on any objective view, subjecting a young child to gossip and debate as to the identity of her father, where there is by the Court of Appeal’s own admission unlikely to be a ‘fade factor’ is questionable to say the least.