Goliath gets the better of little David

The IPKat missed a big case last week: it has however been posted on BAILII and is free for everyone to read. It's David Murray v Express Newspapers plc and Big Pictures (UK) Ltd [2007] EWHC 1908 (Ch), a ruling by Patents Court judge Mr Justice Patten on Tuesday 7 August 2007.

Right: a technical solution to a legal problem - this ingenious buggy makes baby quite invisible to paparazzi using telescopic lenses

Little David Murray, who was just 20 months old, was photographed by Big Pictures, using a telescopic lens, while he was being pushed along the street in a buggy by his mother - none other than Harry Potter creator J. K. Rowling - and his father. The photograph was published without the family's knowledge or consent. The photograph subsequently appeared in The Sunday Express magazine, with accompanying text - attributed to JK herself - setting out some thoughts on her approach to motherhood and family life. The quote was genuine, though it was made in relation to David's big half-sister Jessica. The Express having compromised the claim against it, the action proceeded only against Big Pictures.

David, a pretty sharp lawyer for a kid of less than two years old, argued that Big Pictures had acted in breach of the European Convention on Human Rights Article 8 and in breach of confidence; he also claimed that the company was in breach of the Data Protection Act 1998 since it was holding photographic data about him while unregistered as a data controller. Suing via his parents as best friends, David demanded damages and an injunction against further publication of the piccie. Big Pictures moved for summary judgment or a strike-out of David's claim.

Patten J, following a long and careful judgment, struck David's claims out. In his view

* the first step was to see whether the conduct complained of was indeed a breach of privacy, given that it took place in a public thoroughfare. In this case there was no suggestion that David and his family were distressed by the taking of the photo or that its publication caused them any sort of danger or harm.

* The House of Lords ruling in the Naomi Campbell case (Campbell v MGN Ltd [2004] 2 AC 457 was apparently in conflict with the European Court of Human Rights in Von Hannover v Germany (59320/00), the latter arguably taking a broader view of the extent to which a celebrity victim of unsolicited photography could establish that her privacy had been breached. Although the European Court of Human Rights' rulings must be taken into account in the United Kingdom, the High Court and Court of Appeal remain bound by the decisions of the House of Lords - even if they appear to be out of step with those of the European Court of Human Rights (para.62: "I am in no doubt therefore that if it comes to a straight choice between Von Hannover and Campbell I should follow the decision in Campbell").

* Despite the existence of a right of privacy, there remained an area of routine activity which, when conducted in a public place, carried no guarantee of privacy. This case fell into that category.

* Even though information or events which are trivial may be of considerable importance and sensitivity to a particular person in certain circumstances (as in McKennitt v Ash [2005] EWHC 3003, the facts pleaded in this case were not sufficient to engage David's right to privacy under Article 8.

* As to data protection, the claim must fail since no damage could be said to have been inflicted on David in result of Big Pictures' failure to register as a data controller.

The IPKat notes that the judge was anxious not to extend the right of privacy to ordinary people, saying at para.65:

"It seems to me that a distinction can be drawn between a child (or an adult) engaged in family and sporting activities and something as simple as a walk down a street or a visit to the grocers to buy the milk. The first type of activity is clearly part of a person's private recreation time intended to be enjoyed in the company of family and friends. Publicity on the test deployed in Von-Hannover is intrusive and can adversely affect the exercise of such social activities. But if the law is such as to give every adult or child a legitimate expectation of not being photographed without consent on any occasion on which they are not, so to speak, on public business then it will have created a right for most people to the protection of their image. If a simple walk down the street qualifies for protection then it is difficult to see what would not. For most people who are not public figures in the sense of being politicians or the like, there will be virtually no aspect of their life which cannot be characterized as private. Similarly, even celebrities would be able to confine unauthorized photography to the occasions on which they were at a concert, film premiere or some similar occasion".

What, he wonders, is so wrong in giving ordinary folk (and Kats) a protectable right in their own image? Merpel agrees, adding: it seems strange that Big Pictures can take a photo of little David, profitably license that photo to Express Newspapers and stop everyone - including David - doing any of the acts restricted by the copyright in it, while David has no rights at all. And don't forget, the reason why this illicitly-taken photo is so valuable is because its subject is the son of J. K. herself.

Right: From Harry Potter to Beatrix Potter? Another option for privacy-conscious celebrity children is to adopt a plausible disguise

Paparazzi reviewed here