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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Weller & Ors v Associated Newspapers Ltd [2015] EWCA Civ 1176 (20 November 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1176.html Cite as: [2015] WLR(D) 491, [2015] EWCA Civ 1176, [2016] 1 WLR 1541, [2016] 3 All ER 357, [2016] WLR 1541, [2016] EMLR 7 |
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ON APPEAL FROM
THE QUEEN'S BENCH DIVISION
MR JUSTICE DINGEMANS
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
and
LORD JUSTICE BEAN
____________________
WELLER AND ORS |
Claimants/ Respondents |
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- and - |
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ASSOCIATED NEWSPAPERS LIMITED |
Defendant/Appellant |
____________________
Antony White QC and Catrin Evans (instructed by Reynolds Porter Chamberlain LLP) for the Defendant/Appellant
Hearing dates : 27 & 28/11/2015
____________________
Crown Copyright ©
Master of the Rolls:
A. THE FACTS
"his children being followed; pictures being taken despite his asking for them not to be taken; photographs being published in a national newspaper without consent and without any attempt to hide or disguise their faces; was completely wrong. He said that just because a father is well known doesn't mean that the children should be…the primary objective in bringing this claim on behalf of the children was to ensure that it never happened again."
B. THE LAW
C. REASONABLE EXPECTATION OF PRIVACY
C1. Generally
"35 ….. so far as the relevant principles to be derived from Campbell are concerned, they can we think be summarised in this way. The first question is whether there is a reasonable expectation of privacy. This is of course an objective question. The nature of the question was discussed in Campbell. Lord Hope emphasised that the reasonable expectation was that of the person who is affected by the publicity. He said at [99]: "The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity." We do not detect any difference between Lord Hope's opinion in this regard and the opinions expressed by the other members of the appellate committee.
36 As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."
"154 Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one's own image: cf Aubry v Editions Vice-Versa Inc [1998] 1 SCR 591. 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. (This was the view of Randerson J in Hosking v Runting [2003] 3 NZLR 385, which concerned a similarly innocuous outing; see now the decision of the Court of Appeal, 25 March 2004.)
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."
C2. Reasonable expectation of privacy and foreign law
C3. The position of children
"………The question whether a child in any particular circumstances has a reasonable expectation for (sic) privacy must be determined by the Court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their children's lives in a public place should remain private. Ultimately it will be a matter of judgment for the Court with every case depending upon its own facts. The point that needs to be emphasized is that the assessment of the impact of the taking and the subsequent publication of the photograph on the child cannot be limited by whether the child was physically aware of the photograph being taken or published or personally affected by it. The Court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing."
"Thus, for example, if the parents of a child courted publicity by procuring the publication of photographs of the child in order to promote their own interests, the position would or might be quite different from a case like this, where the parents have taken care to keep their children out of the public gaze."
"The courts have recognised the importance of the rights of children in many different contexts and so too has the international community: see eg R v Central Independent Television Plc [1994] Fam 194 per Hoffmann LJ at 204-5 and the United Nations Convention on the Rights of the Child, to which the United Kingdom is a party. More specifically, clause 6 of the Press Complaints Commission Editors' Code of Practice contains this sentence under the heading "Children": "(v) Editors must not use the fame, notoriety or position of the parent or guardian as sole justification for publishing details of a child's private life." There is also a publication called The Editors' Codebook, which refers to the Code and to the above statement. Although it is true that the Codebook states (at page 51) in a section headed 'Intrusion' that the Press Complaints Commission has ruled that the mere publication of a child's image cannot breach the Code when it is taken in a public place and is unaccompanied by any private details or materials which might embarrass or inconvenience the child, which is particularly unlikely in the case of babies or very young children, it seems to us that everything must depend on the circumstances."
"So, for example, in Tugendhat and Christie on The Law of Privacy and the Media the authors note at paragraph 13.128 (in connection with a complaint made by Mr and Mrs Blair) that the PCC has stated that:
"the acid test to be applied by newspapers in writing about the children of public figures who are not famous in their own right (unlike the Royal Princes) is whether a newspaper would write such a story if it was about an ordinary person."
It seems to us to be at least arguable that a similar approach should be adopted to photographs. If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent. In our opinion it is at least arguable that a child of 'ordinary' parents could reasonably expect that the press would not target him and publish photographs of him. The same is true of David, especially since on the alleged facts here the Photograph would not have been taken or published if he had not been the son of JK Rowling."
"55 We recognise that there may well be circumstances in which there will be no reasonable expectation of privacy, even after Von Hannover. 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, 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 ECtHR'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 in [66] 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. In this appeal we are concerned only with the question whether David, as a small child, had a reasonable expectation of privacy, not with the question whether his parents would have had such an expectation. Moreover, we are concerned with the context of this case, which was not for example a single photograph taken of David which was for some reason subsequently published.
57 It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That is the context in which the photographs of David were taken."
"17 The position of the appellant's wife is equally clear: she opposes publicity. Then there are the children. The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment…"
"Moreover, 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 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 boy's image, recorded by a deliberate act of the photographer was the sole subject of the offending photographs."
"As a person's image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case (see [37] above) obtaining consent of the person concerned at the time the picture is taken and not simply if and when it is published."
Attributes of the claimant
The nature of the activity and the place where it happened
The nature and purpose of the intrusion
Consent
Effect on the claimant
D. THE BALANCING EXERCISE
"19. …… However this learning must, with respect, be read and understood in the context in which it is sought to be applied. It is clear that the interests of children do not automatically take precedence over the Convention rights of others. It is clear also that, when in a case such as this the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests. Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card.
20. How then does this approach square with the way Lord Steyn advised in In Re S that the ultimate balance should be struck, see [10(4)] above. He was confining himself to articles 8 and 10 and not ranging more widely to take note of the other Convention rights of children. He expressed his opinion long before Neulinger called for a reappraisal of the position. In any event, the emphasis he added makes it clear that he was concerned strictly with the balance between article 10 and article 8 "as such", i.e. where the only rights in balance were those conferred by articles 8 and 10. If, as he requires, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary, then the additional rights of children are to be placed in the scale. The question then is whether the force of the article 10 considerations outweigh them given what I have said in paragraph 19.
21. Here there is no political edge to the publication. The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication. The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public. As Lord Hope said of Miss Campbell (paragraph 120 of Campbell v MGN Ltd), "… it is not enough to deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is newsworthy."
E. THE JUDGMENT
"170. In my judgment the photographs were published in circumstances where Dylan, Bowie and John Paul had a reasonable expectation of privacy. This was because the photographs showed their faces, one of the chief attributes of their respective personalities, as they were on a family trip out with their father going shopping and to a café and they were identified by surname."
171. The photographs were different in nature from crowd shots of the street showing unknown children. The photographs showed how Dylan, Bowie and John Paul looked, as children of Paul Weller. The photographs also showed how Dylan, Bowie and John Paul looked on a family day out with their father.
172. Although it was lawful to take the photographs of the Claimants, and it would have been lawful to publish them in California, this did not prevent the Claimants having a reasonable expectation of privacy in relation to their publication in this jurisdiction. Whether the publication is unlawful depends on the outcome of the ultimate balancing test, below."
"182 In my judgment the balance comes down in favour of finding that the article 8 rights override the article 10 rights engaged. These were photographs showing the expressions on faces of children, on a family afternoon out with their father. Publishing photographs of the children's faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California. There was no relevant debate of public interest to which the publication of the photographs contributed. The balance of the general interest of having a vigorous and flourishing newspaper industry does not outweigh the interests of the children in this case. I consider that, although the interpretation of the Editors' Code is not for me, this conclusion is consistent with the approach set out in the Editors' Code which recognises that private activities can take place in public, and that editors should not use a parent's position as sole justification for the publication of details of a child's private life. "
F. THE APPELLANT'S CASE
F1. The appellant's case on reasonable expectation of privacy
F2 . The appellant's case on the balancing exercise
G. CONCLUSION
G1. Preliminary observations
"At each stage, the questions to be determined are essentially questions of fact. The question whether there was a reasonable expectation privacy is a question of fact. If there was, the next question involves determining the relevant factors and balancing them. As Baroness Hale put it at [157], the weight to be attached to the various considerations is a matter of fact and degree. That is essentially a matter for the trial judge."
G2. Conclusion on reasonable expectation of privacy
G3. Conclusion on the balancing exercise
"The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists. However, the rumoured marital difficulties of a president of the republic or the financial difficulties of a famous singer were not deemed to be matters of general interest. "
"The relevant conduct includes evidence of the parents of the children. The evidence, set out above, showed that Paul Weller had spoken about the twins as a proud father when interviewed by newspapers, and a considerable amount of information had been tweeted about the twins as they were growing up. A photograph of Bowie had been tweeted by Leah, which had been retweeted on a fan website but that had been removed. The photograph had remained on Facebook and on Tumblr until it was discovered in the course of preparations for the trial. The twins had been shown in the media as photographed from a distance, but there were no published media photographs showing a full view of their faces. Dylan had been shown in a photograph in Teen Vogue, and in photographs of a book published by her godmother. She had been photographed at an event launching sunglasses, but the image had not been reprinted to any measurable extent."
"Faced with such an overwhelming imbalance between the children's paramount article 8 rights and [the appellant's] generic (and unaffected) article 10 right, the judge understandably found that the balance came down in favour of the article 8 rights [J182]. Even if there had been a closer contest between the parties' respective rights, the judge would have been bound to follow the principles laid down in K and to protect the children's rights in the absence of any 'countervailing reasons of considerable force' displacing them."
H. OVERALL CONCLUSION ON THE MAIN APPEAL
I. THE APPEAL AGAINST THE GRANT OF AN INJUNCTION
"Now an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction."
"(1) the letters were written at a time when liability was in dispute and Mail Online continues to contest liability, seeking permission to appeal to contend that it is lawful to publish the pictures. In my judgment, in a case where the claimants have been put to coming to court and proving their case and then establishing that the publication of the pictures is unlawful and the defendants contend that it is lawful, there is at least the beginnings of cause for concern that they will be further published; (2) It is also possible for people to go back on what they have said they will do in letters. An example is the way in which Mail Online corrected, on 9 June 2014 its earlier and apparently unequivocal letter about the form of the draft order which had been sent out in their letter dated 7 May 2014; (3) in the Mail Online's skeleton argument, addressing this point, reference was made to Article 10, but the skeleton argument appeared to show no recognition of the article 8 rights which, for the reasons contained in my judgment dated 16 April 2014, are engaged."
"This will provide all parties with certainty about what [is] and what is not permitted in circumstances where the letter dated 4 December 2012 was written at a time when liability was denied".
J. CONCLUSION ON THE APPEAL AGAINST THE INJUNCTION
Lord Justice Tomlinson:
Lord Justice Bean: