In a decision confirming the existence of privacy rights in the UK, Associated Newspapers has lost its challenge to an award of £10,000 in damages in favour of Paul Weller’s children. The award came after Mail Online published seven unpixelated pictures of the singer’s sixteen year old daughter and ten month old twin sons in October 2012. 

Background
Mr Weller was with his children shopping and visiting a cafe in California on 16 October 2012 when he noticed a photographer taking pictures of him and his children. He asked the photographer to stop but he refused and continued to take photos. Mail Online became aware of the pictures through an agency and published seven of them online later in the month. They were not pixelated and showed the faces of the children. The High Court ruled that Mail Online had been aware that they had been taken without consent but not of the exact circumstances.

The Decision
The main question was whether the children had a reasonable expectation of privacy even though they were in a public place. The Court ruled that there was a reasonable expectation of privacy, contrasting this to circumstances where pictures of unknown children are taken in the street.

Having found that there was an expectation of privacy the decision was then a balancing act between Paul Weller’s children’s Article 8 (Privacy) and Associated Newspapers’ Article 10 (freedom of speech) rights. The Court ruled in favour of the Article 8 rights. In particular it was not convinced by Associated Newspapers’ arguments around the public interest in a thriving newspaper market and saw no public interest in the pictures being published.

The Court also granted an injunction against Associated Newspapers preventing them from republishing the photographs.

The Appeal
Associated Newspapers appealed against both the decision to award damages and the decision to grant an injunction.

The Appeal Court identified two questions:

  1. Was there a reasonable expectation of privacy? and 
  2. If so, how should this be balanced against the other factors?

As these questions were a matter for the trial judge, the Court of Appeal should not interfere unless the judge has erred in principle or reached a conclusion that was plainly wrong.

In any event however, the Court agreed that there had been a reasonable expectation of privacy. In finding this it placed particular emphasis on the family element of the case. It also looked at the age of the twins and said they could not “knowingly or accidentally lay [themselves] open to the possibility of having [their] photograph taken in the context of an activity that was likely to be recorded or reported” and nor had their parents courted publicity for them. 

In relation to the balancing exercise the Court of Appeal also agreed that there was no public interest in the photographs being taken.

It dismissed Associated Newspaper’s appeal against the granting of an injunction on the basis that the trial judge had discretion as to whether he thought Mail Online was likely to republish. 

Analysis
This decision sets out clearly that just because an activity is carried out in public does not necessarily mean that there can be no expectation of privacy. 

Associated Newspapers have claimed that the decision will have far-reaching adverse effects on the freedom of the UK media. These concerns were recognised by the Court of Appeal but it also expressed hopes that this decision along with others makes the boundaries clear for editors in deciding what can be published. 

 

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