Now you can buy milk without being shot

Following yesterday's news about David Murray (by his litigation friends Neil Murray and Joanne Murray) v Big Pictures (UK) Ltd [2008] EWCA Civ 446 (Court of Appeal judgment now available here on BAILII), it's time for a bit more comment.

JK Rowling's son David Murray, when 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 parents. The photograph, published without the family's knowledge or consent, subsequently appeared in The Sunday Express magazine with accompanying text - attributed to JK Rowling - setting out some thoughts on her approach to motherhood and family life. The quote was genuine but out of context, having been made in relation to David's big half-sister Jessica. The Express having compromised the Murrays' claim, the action proceeded only against Big Pictures. On behalf of David it was argued that Big Pictures had acted in breach of the European Convention on Human Rights Article 8 and in breach of confidence; it was also claimed that the company was in breach of the Data Protection Act 1998 since it held photographic data about David while unregistered as a data controller. Suing via his parents as best friends, David sought damages and an injunction against further publication of the piccie. Big Pictures moved for summary judgment or a strike-out of David's claim.

The judge at first instance, Mr Justice Patten, perhaps surprisingly struck out the claim. In his view there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy. Further, even if the European Court of Human Rights' decision in the Princess Caroline case (Von Hannover v Germany) had extended the scope of protection into areas that conflicted with the principles enunciated in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 (noted here by the IPKat), he was bound to follow Campbell because it was a decision of the House of Lords. David appealed.

The Court of Appeal (Sir Anthony Clarke MR, Laws LJ and Thomas LJ) allowed the appeal. In their opinion

* when deciding whether Article 8 was infringed, the first question to ask was whether there was a reasonable expectation of privacy. That was an objective question, taking account of all the circumstances including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which -- and the purposes for which -- the information reached the hands of the publisher.

* if there was a reasonable expectation of privacy, the second question was how the balance should be struck as between the claimant's right to privacy and the publisher's right to publish. At that stage, one should consider whether the publication of those private facts would be regarded highly offensive to an objective, reasonable person.

* on the facts here, it was at least arguable that David had a reasonable expectation of privacy and that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him. This was the case here, since the photograph would not have been taken or published if David wasn't the son of a well-known author.

* there may well be circumstances in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case and it was not possible to draw a distinction between activities that were part of a person's private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer's to buy milk.

* nor was it necessarily the case that routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances.

* in principle the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf.

* bearing this approach in mind, the judge was wrong to strike out David's claim since he had an arguable case.

The IPKat thinks that the Court has done a neat job in synthesising the approaches of the House of Lords in Campbell and the ECHR in von Hannover. First it neutralised any suggestion that those decisions had any bearing on account of their facts, since neither concerned the special circumstances of child-of-celebrity privacy. Then, without saying that either was right or wrong, it confirmed that the correct approach depends on the facts of each case in which Article 8-type issues and the privacy/press freedom balance is invoked. It did not (as it could not) say that the House of Lords' approach was wrong, but in the end there was no need for it to do so. That's all very well, says Merpel, but aren't we back to the situation in which the only way to find out of you are allowed to do something is to do it and then get sued?