On 20 November 2015, the Master of the Rolls, Tomlinson and Bean LJJ handed down judgment in Weller & Ors v Associated Newspapers Ltd  EWCA Civ 1176, upholding Dingemans J’s finding of liability for misuse of private information (and breach of the DPA, although this did not add anything as it was common ground that the claim for infringement of the DPA would either stand or fall with the claim for misuse of private information).
The appeal was against a finding of liability for misuse of private information in a judgment dated 16 April 2014. In that judgment, Dingemans J awarded Paul Weller’s three children a total of £10,000 damages in respect of 7 photographs published as part of an article on the Mail Online. Dingemans J held that the claimants had a reasonably expectation of privacy ‘because the photographs showed their faces, one of the chief attributes of their respective personalities, as they were on a family trip out with their father’. Applying the criteria for balancing articles 8 and 10 laid down by the Grand Chamber of the ECHR in Von Hannover (No.2), he held that the balance came down in favour of the claimants.
With the permission of Laws LJ, ANL (as publishers of the Mail Online) decided to appeal on two main grounds, as against:
- The finding of liability in the tort of misuse of private information;
- The grant of an injunction to restrain further publication of the photographs.
Misuse of private information
The two stage test
The Master of the Rolls started by recalling the ‘correct general approach to the question whether a publication is in breach of a person’s privacy rights.’ Following Campbell, the test to be applied in those cases has two stages. The first is to ask whether the claimants had a reasonable expectation of privacy. If they did, the second stage is to conduct a balancing exercise as between the individual’s right to privacy under article 8 of the European Convention on Human Rights (‘the Convention’) and the publisher’s right to freedom of expression under article 10.
Grounds of appeal
The appellant submitted that Dingemans J’s conclusion on the issue of reasonable expectation of privacy was unsustainable on four main grounds. First, the finding of liability for the publication of innocuous photographs of a named person taken in a public context without the subject’s consent amounted to the recognition of image rights, which are not currently recognised in English law. Second, contrary to what the judge appeared to have decided, children do not benefit from a general right to privacy simply because of their young age. Third, the threshold of seriousness before article 8 is engaged was merely referred to but not expressly applied. Fourth and finally, the judge either failed to take into account the laws of California or failed to give them any or sufficient weight when reaching his decision.
The appellant further argued that Dingemans J had erred in the balancing the claimants’ article 8 rights and ANL’s article 10 rights. The engagement of article 8 rights was alleged to be low and so should not have outweighed the defendant’s article 10 rights, in particular in light of the public interest in allowing the press to be able to compete in the online global news market.
The court’s findings
The court noted that both stages of the test are questions of fact and that an appellate court should therefore not disturb the evaluative judgment made at first instance unless satisfied that ‘there was no material to support them or they were ones which the court could not reasonably have made’ (paragraph 57).
In the present case, the court set out the approach to a reasonable expectation of privacy of a child claimant at paragraphs 29-30:
- A child does not have a separate right to privacy merely by virtue of being a child.
- Although the broad approach that must be adopted to answering the question whether there is a reasonable expectation of privacy is the same for children and adults, there are several considerations which are relevant to children (but not to adults) which may mean that in a particular case a child has a reasonable expectation of privacy where an adult does not.
- In the case of children (as in the case of adults) all the circumstances of the case should be taken into account in deciding whether there is a reasonable expectation of privacy. These should include the factors listed at paragraph 36 of Murray.
The Master of the Rolls set out how the Murray factors should be applied to children claimants at paragraphs 31-38. Considering them, he held that Dingemans J had correctly found that the claimants had a reasonable expectation of privacy (at paragraphs 61-64):
- Although the photographs were taken in a public place, which was an ordinary incident of living in a free community, the activity was a private family outing and so was protected by the broader right of personal autonomy.
- The parents had not consented to the taking or publishing of the photographs.
- The claimants were children and had been identified by name, thus exposing them to a special vulnerability.
- The twins, who were both less than one year old, did not knowingly or accidentally lay themselves open to the possibility of having their photographs taken in the context of an activity that was likely to be recorded in a public manner. Nor did their parents court publicity for them. The fact that a child’s parents are celebrities may not, without more, be relied on to argue for a lower reasonable expectation of privacy.
- The identification of the claimants by surname created a risk of embarrassment and potentially more serious threats to their safety, against which they ought to be protected.
Finally, pointing at various paragraphs in the first instance judgment, the court satisfied itself that the laws of California had been taken into account. The Master of the Rolls suggested that Dingemans J should have expressly said how much weight he gave to this factor, but noted that in any event there were insufficient grounds to interfere with his decision (at paragraphs 70-71).
In relation to the balancing exercise, the court emphasised the following points at paragraphs 39-41:
- The fact that a child’s article 8 rights are engaged as a result of the application of the first stage of the test does not automatically mean that any article 10 rights will be trumped by the need to consider the best interests of a child.
- However, the primacy of the best interests of a child means that, where a child’s interests would be adversely affected, they must be given considerable weight.
- While the photographs had only impacted one of the three claimants, the absence of harm could not be determinative as the best interests of the child had to be taken into account.
Applying the Von Hannover (No.2) criteria at paragraphs 74-78, the judges accepted the claimant’s submission that there had been ‘an overwhelming imbalance between the children’s article 8 rights and [the appelant’s] generic (and unaffected) article 10 right’. In particular, the appellate judges stressed that whether the publication made a contribution to a debate of general interest was still a relevant factor and that Dingemans J was entitled to find that there was no such contribution in the present case.
Injunction restraining further publication of the photographs
The appellant also argued that the ‘grounds for concern’ outlined in Dingemans J’s second judgment were insufficient to justify the grant of an injunction restraining further publication of the photographs. Indeed, it was readily recognised that there was no evidence that the Mail Online would publish the photographs again.
This ground of appeal was also dismissed. The court recognised the force in the appellant’s argument, but suggested that the question was not ‘whether this court would have exercised the discretion in the same way as the judge did, but whether his decision was one that was reasonably open to him’ (para 86). On the facts of the case, the Master of the Rolls found that Dingemans J was entitled in the exercise of his discretion to grant a limited injunction in order to provide certainty to the parties about the assurance already offered. Importantly, he denied that upholding this type of undertaking in the absence of any intention to republish would have serious adverse consequences on the right to freedom of expression. In his view,
‘If a defendant has no intention of publishing, then there can be no inhibition on its freedom of expression in relation to that publication and it can have no impact on its freedom of expression in relation to any other publication.’
This decision, for which ANL was refused permission to appeal to the Supreme Court, did not address the issue of the legal recognition of image rights in English law. This had been the subject of much speculation after the first instance judgment. However, it is arguable that the substance of the current case moves away from any potential recognition of image rights. The crucial point for the judges was not the claimants’ facial expressions and the ‘range of emotions’ that were displayed. Instead, their attention turned to the private nature of the activity and the fact that the claimants were children. The decision is therefore in line with the Court of Appeal’s focus on children’s rights in Murray, and sets out helpful guidance on the position of children claimants in cases involving breaches of privacy.
Perhaps more important is the court’s approach to the weight afforded to freedom of expression when awarding an injunction prohibiting republication. The formulation used suggests that limited injunctions against republication might become increasingly more common regardless of an intention to republish and of pre-existing assurances. The developments to follow will be of great interest in media litigation.
Mathilde Groppo is currently working as a paralegal at Carter-Ruck, and will start her French qualification to practice in January 2016. She has a special interest in media law and data protection.
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