The election nears. The Prime Minister publicly stakes his re-election prospects on his government’s ability to make its the flagship “Rwanda” policy operational (or else threatens to leave that the Strasbourg court if it blocks it). Barely a day goes by when the “small boats crisis” and the litigation to which the expensive Rwanda scheme has given rise is not covered by the press and broadcast media.

Almost all that coverage carries photographs (or moving footage) of asylum seekers and their children, in the crucial moments when they are rescued at Dover, or the direct aftermath, escorted by border guards to an official location where they will be photographed, fingerprinted, and screened.  Much of it includes photos of rescued children. With some notable exceptions (including – but not only – the Daily Mail’s reporting, which generally pixelates or shields the children’s faces), much mainstream media coverage has failed to do so.

Absent parental consent, that practice is unlawful. It entitles the children concerned to damages for violation of their Article 8 rights.

Many of the unpixellated photos remain available online. There are strong grounds for immediate action now to shield their faces. If there has been a calculated decision in newsrooms that a legal risk is worth running because vulnerable children do not sue, that is reckless and may lead to adverse legal consequences.

The rest of this post explains why.

The Dover-Calais crossing for children seeking refuge

To illustrate the experience of the Calais-Dover crossing and the effect on the people involved, here is an anonymised extract from a witness statement of one of my adult clients in judicial review proceedings, now a recognised refugee, referred to in open court. (In this case, the High Court held that it was arguable that the government had unlawfully abridged its asylum interview policy during Covid, with the effect that asylums seekers’ subjection to enslavement in Libya was going undetected, in breach of domestic law). The account of the crossing here is typical of the experience of many of my clients who cross to Dover:

I went down to the beach [in Calais] and met the man. There were 20 other adults; 15 men and 5 women, as well as 1 child. When I got into the boat I saw a person wearing a full face mask, and it reminded me of what had happened in Libya [where I was enslaved]. I was so scared that I fainted.

After a while I woke up, and we were in the middle of the sea. I woke up because the boat was filling with water and I was shocked by the cold of the sea. I started screaming and the other people told me to calm down. They were using their shoes to try and empty the boat, but it was not fast enough, the water was coming in too quickly. We were all losing hope. We were all screaming and we thought that we were going to die. We were desperately trying to empty the boat with our shoes. 

At 9 or 10am, approximately 30 minutes after I had woken up because of the water entering the boat, we saw a big boat coming towards us and we started screaming for them to come and rescue us. They came with small boats to rescue us and transferred us to the big boat. I was crying a lot, because I felt a sense of relief and joy at the fact that I was not going to die. I believed I would be safe….”

This person was an adult when he crossed. In common with many confirmed victims of enslavement and refugees, he suffers from Post Traumatic Stress Disorder. The mental fragility of asylum-seeking children can be worse. At the point they are subjected press attention, the children are typically traumatised by the crossing and may also be re-traumatised by being taken captive by border officials (especially where there is a history of state brutality in their countries of origin).

Asylum seeking children have suffered on the journey to Europe (typically many months over land, often in smothering darkness in the back of a lorry). In some cases (especially those involving sub-Saharan and North African children), an adult has also subjected them the terrifying Mediterranean crossing. The UNHCR estimates that at least 550 people have already gone missing this year, presumed dead. Some of these vulnerable children go on to sleep rough in Western Europe en route from Greece, Malta or Italy to the UK, where some experience brutality and racism. All this is before they board the boat at Calais. And it is relevant to the assessment of damages for the invasion of their privacy: a vulnerable claimant is entitled to higher compensatory damages because a tortfeasor must take their victim as s/he finds them.

The claim in misuse of private information

It was recognised in the earliest domestic cases that “Special considerations attach to photographs in the field of privacy”. They “are not merely a method of conveying information…they enable the person viewing the photograph to act as spectator, in some circumstances, voyeur would be the more appropriate noun, of whatever it is that the photograph depicts. As a means of invading privacy, a photograph is particularly intrusive” (Douglas v Hello! No.3 [2006] QB 125, [84]).

There are two stages to any claim for misuse of private information:

  • Is there a reasonable expectation of privacy in the information conveyed by the photos, such that their rights under Article 8 ECHR are engaged; and
  • If so, is that outweighed by the Article 10 rights of the media and wider public in contributing to a debate of public interest?

 Question 1: Is there a reasonable expectation of privacy in relation to the photographs?

In relation to photographs of children rescued at Dover, the answer is “yes”. The myth of a “bright line rule” that privacy cannot not attach to public places was judicially debunked long ago (see Stoute v NGN [2024] 1 All ER 818, [36]). In its place, courts make a fact sensitive assessment on a case-by-case basis, having regard to:

  • A claimants’ attributes (here, traumatised children with no other public profile);
  • The nature of the activity (the last moments or aftermath of a traumatic journey, where they risked of drowning and are likely to be suffering shock);
  • The place at which it was happening (a beach, or coast);
  • The nature and purpose of the intrusion (depending on the publication, to expose the insecurity of British borders, to draw attention to their plight of refugee children, or both);
  • Whether consent to the intrusion was given or can be inferred. (The inference is that – amidst a fraught situation where asking for it would be intrusive – that is highly unlikely);
  • The effect of the intrusion; and
  • The circumstances in which it came into the publisher’s hands.

(see Murray v Express [2009] Ch 481, para 36)

The only considerations which tell against such an expectation is the fact that the children are arriving publicly, at a border, to seek refuge. There is no place more public than a coast. Yet what has often been decisive in cases of photography in public is the extent to which a claimant “knowingly or accidentally lay himself open to the possibility of having his photograph taken in the context of an activity that was likely to be recorded or reported in a public manner” (Reklos v Greece [2009] EMLR 16, [37]). This consideration may well assist a newspaper publication or broadcaster which carries an unpixellated photograph of an adult, who has taken their own decision to board. It has no force in the case of vulnerable children. They are not legally taken to have capacity. They have been brought or taken to the UK by the choices of adults directing then. They cannot safely be assumed to appreciate the risks or purpose of the journey.

Question 2: Does the public interest in debates about unlawful entry to the UK justify publishing unpixellated photos of children?

There is an undoubted – even an “exceptional” – public interest in drawing attention to the small boat crossings, the plight of asylum-seeking children and the insecurity of our borders. Although a countervailing public interest is legally capable of trumping a reasonable expectation of privacy, in the absence of parental consent, it does not justify unpixellated photographs of distressed children.

In cases involving children, the familiar Article 8/10 judicial “balancing exercise” is conducted with regard to an additional legal principle – that “[w]here the best interests of the child clearly favour a certain course, that course should be followed, unless countervailing reasons of considerable force displace them” (K v News Group Newspapers [2011] 1 WLR 1827, per Ward LJ, [19]). This consideration is not a trump card but it is often decisive.

Photojournalists have compared photography of Dover crossings to war photography. But the images of children caught up in war overseas do not expose those children to a risk of identification when their images are published here. The images of children arriving in Dover here do. They have been brought to this country to seek refuge, and to build a life. They are photographed in the very first moments of that life, when traumatised. How could the best interests assessment ever point in favour of the identification risk?

The IPSO Editors’ Code is also relevant to the outcome of the balancing act. A product of self-regulation, it is widely regard as more permissive than our privacy laws. Yet it points to the same result. Clause 6(iii) makes clear that “children under 16 must not be…photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents”. The provision is starred, meaning it can be overridden in the public interest, which includes “raising or contributing to a matter of public debate” and “exposing crime”. However, the Code states that in cases involving children under 16 “editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child”. That is a nod to the case law.

Clause 4 is also relevant: “in cases involving personal grief or shock…approaches must be made with sympathy and discretion and publication handled sensitively”. Unlike Clause 6(iii), Clause 4 of the Code is not starred.

How much could the children be awarded in damages?

Two strands of case law are broadly relevant to the damages assessment:

(1) Awards for breach of a child’s Article 8 rights in connection with photography in public. These are not generally cases where the children are acutely vulnerable, photographed suffering from shock at the crossing, and entering a new country of refuge for the very first time. Instead, the cases involving damages awards have generally involved anodyne day-to-day “family life”. For example:

  • In AAA v Associated Newspapers [2013] EMLR 2, Nicola Davies J awarded £15,000 in damages to a child in connection with series of articles in The Daily Mail carrying an unpixelated photo of her in a buggy in a public place. The articles speculated as to the child’s paternity (the public interest justification being speculation that her father was an elected politician). The Court held that publication of the unpixellated photo was unlawful: “Even allowing for the margin of journalistic appreciation I do not regard the publication of any of the photographs as being reasonable…The articles provided sufficient information, no more was required, particularly when the same involved the image of a young child photographed and published without the parent’s consent”: [122]. Associated did not appeal in relation to the finding on the photographs. The sum is worth about £21,000 in today’s money – and it was awarded even though there was “no suggestion that the taking of the photograph caused distress to the [child]”:
  • In Weller v Associated Newspapers [2016] 1 WLR 1541, Dingemans J granted the children of a British musician an injunction to restrain further publication of unpixelated photographs of them enjoying a family outing in shops and cafes in California. The Court awarded the eldest child (aged 16) £5,000 in damages (she was shocked and felt threatened by the taking of the photos, then embarrassed at their publication) and £2,500 to each of the 10-month year old twin sons (who were unaware of being photographed). The Court of Appeal upheld the decision on liability.

Given the levels of stress involved and the acute vulnerability of children on arrival, damages could easily be far higher.

(2) Awards for distress and intrusion into shock associated with an unjustified intrusion into privacy.

The following cases are also illustrative:

  • Peck v United Kingdom (2003) 36 EHRR 41 – in an early Strasbourg case, the Applicant was awarded €11,800 (£9,600 in 2003) in connection with the release of CCTV footage showing him walking down Brentwood High Street with a knife in his hand, in the preparatory stages of an attempt to commit suicide. That is about £17,000 in today’s money. It reflected Mr Peck’s distress.
  • TLT v Secretary of State for the Home Dept [2016] EWHC 2217 (QB) (upheld on appeal), the Court made awards ranging from £2,500 to £12,500 to asylums seekers in connection with a Home Office data breach which inadvertently published on the website their names, ages, nationality and (inter alia) the fact they had made an asylum claim. No photos were included and the information was online for only two weeks.

Conclusion

The Government’s Rwanda policy is legally controversial.  What is not controversial is that children who arrived on small boats have no responsibility, legal or moral, for the activities of people smugglers. They do have rights which need to be protected.  Media and broadcast publications should now think carefully as to whether to continue publishing unpixellated photographs of this kind. Those which continue to so risk diverting scarce resources from journalism to legal proceedings.

 Zoe McCallum is a barrister at Matrix chambers. She practices media and public law.