The Supreme Court has refused Associated Newspapers Limited permission to appeal against the decision awarding damages and an injunction to the three children of the singer Paul Weller following the publication in the Daily Mail of photographs of them taken in public places in California.
In an order dated 23 March 2016, Lords Neuberger, Sumption and Hughes refused permission “because the application does not raise an arguable point of law“.
The case was heard at first instance by Mr Justice Dingemans in March 2014. We had a post about the trial. In his judgment ( EWHC 1163 (QB), the Judge held that the publication of unpixellated photographs of the three children on a family afternoon out was a misuse of their private information. He awarded damages in the total sum of £10,000 and granted an injunction. We had a post about the decision at the time.
As a result of her experiences in this case, Hannah Weller launched “Protect” the campaign for children’s privacy which called the Government to protect children’s privacy by preventing the media from publishing photographs of children without consent from parents or a legal guardian. This attracted strong public support in an opinion poll but was controversial (see the article on Inforrm by Angela Phillips).
Associated Newspapers appealed on a number of grounds. The appeal was heard by the Master of the Rolls, Tomlinson and Bean LJJ on 27 and 28 November 2015 (see our post previewing the appeal here).
In a judgment handed down on 20 November 2015 ( EWCA Civ 1176), the Court of Appeal dismissed the Associated Newspapers appeal on all grounds.
In relation to the “first stage” which has to be considered in a misuse of private information claim, the Court of Appeal held that the claimant children had a reasonable expectation of privacy for a number of reasons
- 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 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.
The “second stage”, balancing Articles 8 and 10, the Court of Appeal took into account
- The fact that the photographs did not contribute to a debate of general interest.
- 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.
- The fact that, although 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.
Associated Newspapers was refused permission to appeal by the Court of Appeal and has been refused now by the Supreme Court. This means that the Court of Appeal’s analysis of the application of the law of misuse of private information to paparazzi photographs of children must now be taken as a definitive statement of the applicable principles.
The case is likely to mean that the English media will now avoid the publication of unpixellated photographs of children taken without parental consent.
This case is the second this week in which a media appeal against a privacy judgment has been dismissed by the Supreme Court – the same three justices having refused Mirror Group permission to appeal on 22 March 2016 (see our post here).