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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stoute & Anor v News Group Newspapers Ltd [2023] EWCA Civ 523 (19 May 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/523.html Cite as: [2023] EWCA Civ 523 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE, KING'S BENCH DIVISION, MEDIA AND COMMUNICATIONS LIST
Mr Justice Johnson
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MALES
and
LORD JUSTICE ARNOLD
____________________
(1) RICHARD STOUTE (2) SARAH STOUTE |
Claimants/Appellants |
|
- and - |
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NEWS GROUP NEWSPAPERS LIMITED |
Defendant/Respondent |
____________________
Adam Wolanski KC and Hope Williams (instructed by Wiggin LLP) for the Respondent
Hearing date : 10 May 2023
____________________
Crown Copyright ©
Lord Justice Arnold:
Introduction
The facts
The photographs and the articles
"A super-rich former nurse whose PPE firm raked in £2billion from Covid contracts laughs as she paddles on a Caribbean island.
Sarah Stoute, 49, and husband Richard, 52, spent Christmas abroad in luxury."
The version published online has a different headline, but otherwise the text is identical.
The law
The legislative framework
Case law of the European Court of Human Rights
"Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of 'ideas', but of images containing very personal or even intimate 'information' about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution."
"… the Court would emphasise that in the present case the applicants' son did not 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. On the contrary, the photographs were taken in a place that was accessible only to the doctors and nurses of the clinic … and the baby's image, recorded by a deliberate act of the photographer, was the sole subject of the offending photographs."
"95. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person's … photo …; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. Publication of a photo may thus intrude upon a person's private life even where that person is a public figure….
96. Regarding photos, the Court has stated that a person's image constitutes one of the chief attributes of his or her personality, as it reveals the person's unique characteristics and distinguishes the person from his or her peers. The right to the protection of one's image is thus one of the essential components of personal development. It mainly presupposes the individual's right to control the use of that image, including the right to refuse publication thereof ..."
"… the Supreme Court examined the way the wedding was conducted and reiterated the principle set out in Von Hannover v. Germany, (no.1) … that the concept of private life is comprehensible, and includes 'a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life"'. It thus noted that the wedding was organised in a very unusual way, for example with the arrival of the bride in an open boat and the presence of a men's choir singing a hymn on the islet. Moreover, since the ceremony took place in an area that was accessible to the public, easily visible, and a popular holiday location, it was likely to attract attention by third parties. The Court accepts the Supreme Court's view in this respect that these elements should also be given a certain amount of weight."
"70. It is not contested that the photographs of the applicant leaving hospital were taken covertly without her knowledge or consent. Nonetheless, the domestic courts attributed great importance to the fact that they had been taken in a public place—on the street. The courts also considered that these photographs had been taken to illustrate a specific event and 'had not been connected with following the applicant's everyday life and covertly photographing intimate moments of her private life'.
71. The Court reiterates that the fairness of the means used to obtain the information and reproduce it for the public is an essential criterion to be taken into account. With respect to the present case the Court considers that the applicant did not lay herself open to the possibility of having her photograph taken in the context of an activity that was likely to be recorded or reported in a public manner. The domestic courts did not take into account that the applicant needed to traverse the public space between the hospital's entrance and her car in order to bring her newborn child home. This inherently private event was not an activity with respect to which the applicant should have anticipated publicity. In such circumstances an effective protection of a person's image presupposes obtaining the consent of the person concerned at the time the picture is taken and not only if and when it is published. Otherwise an essential attribute of personality is retained in the hands of a third party and the person concerned has no control over any subsequent use of the image.
72. With respect to the domestic courts' conclusion that the photographs were taken to illustrate a specific event and were not connected with following the applicant's everyday life, the Court notes that there is nothing in its case-law to suggest that a violation of the right to private life could only occur if the person had been followed systematically.
73. Furthermore, the conclusion that the impugned photographs were not connected with covert photographing of intimate moments of the applicant's private life was manifestly incompatible with the facts of the case. … "
Domestic case law
"49. Whether there is a reasonable expectation of privacy is an objective question. The expectation is that of a reasonable person of ordinary sensibilities placed in the same position as the claimant and faced with the same publicity ….
50. As stated in Murray at para 36, 'the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case'. Such circumstances are likely to include, but are not limited to, the circumstances identified at para 36 in Murray - the so-called 'Murray factors'. These are: (1) the attributes of the claimant; (2) the nature of the activity in which the claimant was engaged; (3) the place at which it was happening; (4) the nature and purpose of the intrusion; (5) the absence of consent and whether it was known or could be inferred; (6) the effect on the claimant; and (7) the circumstances in which and the purposes for which the information came into the hands of the publisher.
…
52. Whilst all the circumstances of each case must be considered, Gatley on Libel and Slander, (12th ed) at para 22.5 suggests that there are certain types of information which will normally, but not invariably, be regarded as giving rise to a reasonable expectation of privacy so as to be characterised as being private in character. These are the state of a person's physical or mental health or condition; a person's physical characteristics (nudity); a person's racial or ethnic characteristics; a person's emotional state (in particular in the context of distress, injury or bereavement); the generality of personal and family relationships; a person's sexual orientation; the intimate details of personal relationships; information conveyed in the course of personal relationships; a person's political opinions and affiliations; a person's religious commitment; personal financial and tax related information; personal communications and correspondence; matters pertaining to the home; past involvement in criminal behaviour; involvement in civil litigation concerning private affairs; and involvement in crime as a victim or a witness. …
53. Gatley also suggests that there are some types of information which will normally not be regarded as giving rise to a reasonable expectation of privacy so as not to be characterised as being private in character, namely: corporate information, a person's physical location, involvement in current criminal activity, a person's misperformance of a public role, information deriving from a hearing of a criminal case conducted in public, and the identity of an author …
…
55. The effect on the claimant must attain a sufficient level of seriousness for article 8 to be engaged …. In general, there will be no reasonable expectation of privacy in trivial or anodyne information."
"First, neither article (8 or 10) has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
"84. This action is about photographs. Special considerations attached to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a 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. This is quite apart from the fact that the camera, and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographed could reasonably expect that their appearances or actions would not be brought to the notice of the public.
85. The intrusive nature of photography is reflected by the various media codes of practice. It is also recognised by the authorities. …
106. Nor is it right to treat a photograph simply as a means of conveying factual information. A photograph can certainly capture every detail of a momentary event in a way which words cannot, but a photograph can do more than that. A personal photograph can portray, not necessarily accurately, the personality and the mood of the subject of the photograph. …"
"122. The photographs were taken of Miss Campbell while she was in a public place, as she was in the street outside the premises where she had been receiving therapy. The taking of photographs in a public street must ... be taken to be one of the ordinary incidents of living in a free community. The real issue is whether publicising the content of the photographs would be offensive … A person who just happens to be in the street when the photograph was taken and appears in it only incidentally cannot as a general rule object to the publication of the photograph … But the situation is different if the public nature of the place where a photograph is taken was simply used as background for one or more persons who constitute the true subject of the photograph. The question then arises, balancing the rights at issue, where the public's right to information can justify dissemination of a photograph taken without authorisation …. The European court has recognised that a person who walks down a public street will inevitably be visible to any member of the public who is also present …: PG and JH v United Kingdom …, para 57. But, as the court pointed out in the same paragraph, private life considerations may arise once any systematic or permanent record comes into existence of such material from the public domain. …
123. The same process of reasoning that led to the finding[] in Peck that the article 8 right had been violated … can be applied here. Miss Campbell could not have complained if the photographs had been taken to show the scene in the street by a passer-by and later published simply as street scenes. But these were not just pictures of a street scene where she happened to be when the photographs were taken. They were taken deliberately, in secret and with a view to their publication in conjunction with the article. The zoom lens was directed at the doorway of the place where the meeting had been taking place. The faces of others in the doorway were pixelated so as not to reveal their identity. Hers was not, the photographs were published and her privacy was invaded. The argument that the publication of the photograph added credibility to the story has little weight. The photograph was not self-explanatory. Neither the place nor the person were instantly recognisable. The reader only had the editor's word as to the truth of these details.
124. Any person in Miss Campbell's position, assuming her to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs. She would have seen their publication, in conjunction with the article which revealed what she had been doing when she was photographed and other details about her engagement in the therapy, as a gross interference with her right to respect for her private life. …"
"154. Publishing the photographs contributed both to the revelation and to the harm that it might do. … We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it. …
155. But here the accompanying text made it plain that these photographs were different. They showed her coming either to or from the NA meeting. They showed her in the company of others, some of whom were undoubtedly part of the group. They showed the place where the meeting was taking place, which will have been entirely recognisable to anyone who knew the locality. A picture is 'worth a thousand words' because it adds to the impact of what the words convey; but it also adds to the information given in those words. If nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place looked like. In context, it also added to the potential harm, by making her think that she was being followed or betrayed, and deterring her from going back to the same place again."
"17. It may well be that the mere taking of a photograph of a child in a public place when out with his or her parents, whether they are famous or not, would not engage article 8 of the Convention. However, as we see it, it all depends upon the circumstances. … This was not the taking of a single photograph of David in the street. On the claimant's case, which must be taken as true for present purposes, it was the clandestine taking and subsequent publication of the photograph in the context of a series of photographs which were taken for the purpose of their sale for publication, in circumstances in which BPL did not ask David's parents for their consent to the taking and publication of his photograph. It is a reasonable inference on the alleged facts that BPL knew that, if they had asked Dr and Mrs Murray for their consent to the taking and publication of such a photograph of their child, that consent would have been refused.
18. Moreover, on the assumed facts, this was not an isolated case of a newspaper taking one photograph out of the blue and its subsequent publication. This was at least arguably a very different case from that to which Baroness Hale of Richmond referred in her now well known example … of Ms Campbell being photographed while popping out to buy the milk. The correspondence to which we have referred shows that a news agency, a freelance photographer and two newspapers had photographers outside the Murrays's house in the period before publication of the photograph and a schedule exhibited to the particulars of claim shows that this was not an isolated event. … The claimant further relies upon the fact that BPL describes itself as 'The world's biggest and best celebrity picture agency' …
55. We recognise that there may well be circumstances in which there will be no reasonable expectation of privacy, even after Von Hannover v Germany …. However, as we see it all will, as ever, depend upon the facts of the particular case. The judge suggests 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. This is on the basis that 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 and that, on the test deployed in Von Hannover v Germany, publicity of such activities is intrusive and can adversely affect the exercise of such social activities. We agree with the judge that that is indeed the basis of the European court's approach but we do not agree that it is possible to draw a clear distinction in principle between the two kinds of activity. Thus, an expedition to a café of the kind which occurred here seems to us to be at least arguably part of each member of the family's recreation time intended to be enjoyed by them and such that publicity of it is intrusive and such as adversely to affect such activities in the future.
56. We do not share the predisposition identified by the judge …. that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. All depends upon the circumstances. The position of an adult may be very different from that of a child. …"
"18. The taking of photographs in a public street must be taken to be one of the ordinary incidents of living in a free community …. It is not, however, in dispute that a person's privacy rights may be infringed even in relation to things done in a public place. …
60. It is true that the photographs were taken of the claimants and their father in a public place. But it is well established in both the domestic and Strasbourg case law that there are some matters about which a person can have a reasonable expectation of privacy notwithstanding that they occur in public.
61. The starting point is the place where the activity happened and the nature of the activity. As the judge said, this was a private family outing. It could have been a family visit to a local park or to a public swimming pool. It happened to be an outing to the shops and to a café which was visible from the street. The essential point is that it was a family activity which belongs to that part of life which is protected by the broader right of personal autonomy recognised in the case law of the Strasbourg court …. The family element of the activity distinguishes it from Naomi Campbell's popping out to the shops for a bottle of milk and Sir Elton John standing with his driver in a London street, outside the gate to his home wearing a baseball cap and tracksuit: see John v Associated Newspapers Ltd [2006] EMLR 27."
"In the present case there is no question of the photograph revealing information which touches upon or is relevant to Sir Elton John's health. Nor is there any information about social or personal relationships or, as sometimes happens in these cases, sexual relationships. Those are all matters in respect of which, to a greater or lesser extent, as with allegations about health, an individual has a reasonable expectation of privacy. Here it seems to me that the circumstances are much more akin to 'popping out for a pint of milk'. In other words, it is simply an individual leaving his car and going to his front gate."
The judge's judgment
"In this context, the fact that the material that the claimant seeks to protect is already in the public domain is a relevant, but not decisive, factor. In other words, an injunction may be granted to prevent the further publication of material that is already in the public domain if such an injunction would serve a useful purpose: PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] AC 1081 per Lord Mance at [25]-[32]."
"… Mr Bennett stresses that the claimants were engaged on what was essentially a private activity, namely attending a celebratory meal for their daughter's birthday, with invited family and friends. The material comprises photographs and the law is clear that special considerations apply to privacy cases involving photographs. He accepts that they were taken in a place where the public had access, but submits that it does not follow that the claimants did not have a reasonable expectation of privacy. There is, he says, a difference between, on the one hand, other beach users merely seeing the claimants and their party on the beach, and, on the other hand, the claimants and their party being targeted and followed and pursued by a photographer, and secretly photographed, with the ensuing photographs being published to the world at large in a national newspaper. A reasonable person would, he says, take offence and be concerned if he knew at the time, or found out later, that somebody who merely happened to be on the beach with them was behaving or had behaved in a 'creepy' manner, particularly if those being pursued and photographed included children. He says that knowing that one and one's children have been covertly stalked in order to obtain photographs for mass publication is unnerving and destabilising and amounts to a particularly intrusive infringement into private life. He says it has a seriously detrimental effect on the claimants' well-being and their family life, including the knowledge that, absent the court's intervention, it may well happen in future when they are at their second home on holiday or elsewhere for as long as there is a market in paparazzi photographs."
"33. The fact that the claimants were in a public location at the time that the information about them was obtained does not, of itself, mean that they had no reasonable expectation of privacy in respect of that information. A person may retain a reasonable expectation of privacy in respect of information that is obtained about them when they are in a public place. So, for example, if a person touches a postbox when posting a letter and thereby leaves their DNA on the letterbox, they retain a right of privacy in respect of that material. If two people walking down the street have a whispered conversation with each other when there is nobody in the vicinity, they are likely to enjoy a right of privacy in respect of that conversation: cf PG v United Kingdom …. If a person suffers a mental health crisis or physical ill-health whilst in public, then they may well retain a right to privacy in respect of that: Peck v United Kingdom. If a person is the subject of a lengthy and intrusive campaign by paparazzi photographers, that they may give rise to a reasonable expectation of privacy, even in respect of events that take place in a public place: Von Hannover v Germany …. If a person gets changed on a beach under cover of a towel and the towel momentarily slips, then they might reasonably expect not to be photographed. In each of these cases there is an additional element which renders information private even though it is obtained in a public place. It is that additional information that engages the 'inner zone' that is recognised in Peck and PG. In the absence of that additional element, information that someone chooses to reveal in public is less likely to be recognised by the law as private. Public and private CCTV and the use of mobile phones to take photographs and record video is ubiquitous. Anyone venturing out in public may be captured by such cameras. The reasonable person knows that is the case. It follows that there is no general reasonable expectation of privacy in respect of information that is patent to anyone who happens to be in the same place at the same time.
34. In this case, the claimants were in a public place, namely a public beach, that they crossed in order to reach a restaurant. They arrived by jet ski. There was a demonstrative and performative element to their arrival. Members of the public were present at the restaurant and the beach and the method of the claimants' arrival is likely to have drawn attention to them. The information that is captured in the photographs corresponds to how the claimants chose to appear in public. There is no additional element of inherently private information. The information that is contained in the photographs is simply what any person present at that place and at that time would have seen. … The fact that the claimants did not consent to the photographs and that they were taken from a distance using highly magnified telescopic lenses and the context of the pursuit of the claimants over a period of two or three days is relevant to the question of whether they had a reasonable expectation of privacy. I do not, however, consider that these factors are present to a degree or extent which make it likely that the court at trial would conclude that they had a relevant reasonable expectation of privacy. The degree of intrusion is far less than was present, for example, in the Princess Caroline of Monaco case: Von Hannover v Germany … , John v Associated Newspapers Ltd … ."
"I accept the claimants' submission that an injunction can be granted to restrain further misuse of private information even if the information is already in the public domain. In the particular circumstances of this case, however, I consider that, even if the claimants could show that they had a reasonable expectation of privacy, the balance now falls against the grant of injunctive relief and in favour of maintaining the status quo until trial."
The underlying claim
The appeal
Conclusion
"This does not mean that the defendant or others may publish any pictures of the claimants with impunity. It just means that the claimants have not established their case in respect of the application for an injunction that they have made. It is entirely possible that there are pictures in the possession of the defendant or others which would, if published, amount to an actionable tort."
Lord Justice Males:
Lord Justice Peter Jackson: