Factual and Procedural Background
The Plaintiff is an infant represented by his litigation friends, Dr. Murray and Mrs. Murray, born in 2003. A photograph was taken covertly by Company B of the Plaintiff and his parents in a public street, showing the Plaintiff in a buggy pushed by his father, with his mother walking alongside. The photograph was taken without consent using a long-range lens. The photograph was published in a magazine by Company A accompanied by text attributed to the Plaintiff's mother, which was not provided for publication in conjunction with the photograph.
Proceedings were issued by the Plaintiff against the Defendants seeking an injunction to restrain further publication of the photograph or similar photographs taken without consent, damages or an account of profits for breach of confidence, infringement of privacy, and misuse of private information. An alternative claim under the Data Protection Act 1998 was also made. The claim against Company A was compromised, and the action continued only against Company B.
Company B applied for summary judgment or striking out the claim, arguing no reasonable grounds existed for the claim. The court was invited to determine whether the Plaintiff had a reasonable prospect of success on the pleaded facts before trial. The case raises the issue of the extent of protection afforded to private family life of public figures and their children when activities occur in public places.
Legal Issues Presented
- Whether the Plaintiff, as a child of a public figure, has a reasonable expectation of privacy in respect of a photograph taken without consent in a public place.
- Whether the publication of the photograph constitutes a breach of confidence, infringement of privacy, or misuse of private information under English law and the Human Rights Act 1998.
- Whether the Data Protection Act 1998 provides a basis for relief concerning the processing and publication of the Plaintiff's personal data.
- How to reconcile the principles established in Campbell v MGN Ltd with the jurisprudence of the European Court of Human Rights, particularly Von Hannover v Germany and Sciacca v Italy.
- Whether the defenses of legitimate journalism and freedom of expression under Article 10 of the European Convention on Human Rights outweigh the Plaintiff's privacy rights under Article 8.
Arguments of the Parties
Appellant's Arguments (Plaintiff)
- The Plaintiff, through his parents, seeks recognition of a right to personal privacy for themselves and their children when engaged in ordinary family activities, even in public places.
- The photograph was taken covertly without consent and published alongside text implying private family reflections, thereby infringing privacy rights.
- The Plaintiff's status as a child and the efforts by the parents to shield the children from publicity justify a reasonable expectation of privacy.
- The Data Protection Act claim relies on the unlawful processing of personal data, including failure to provide required information and lack of registration as a data controller by Company B.
- Recent Strasbourg jurisprudence (Von Hannover and Sciacca) supports a broader interpretation of privacy rights extending to non-intimate family activities in public places.
Respondent's Arguments (Company B)
- The statement of case discloses no reasonable grounds for the claim; no interference with the Plaintiff's privacy rights or breach of confidence occurred.
- English law does not recognize a right not to be photographed in a public place absent special circumstances such as harassment or distress.
- The photograph depicts innocuous, public conduct without revealing any intimate or confidential information.
- The Data Protection Act claim fails because the processing was lawful and fair, and failure to provide prior notice did not cause damage or distress.
- The freedom of expression and legitimate journalistic interests outweigh any privacy claims.
- The Plaintiff suffered no distress or harm, and the photograph does not constitute sensitive personal data under the Act.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Campbell v MGN Ltd [2004] 2 AC 457 |
Established the test of reasonable expectation of privacy and the development of breach of confidence to protect private information. |
The court applied Campbell as binding authority, emphasizing the reasonable expectation of privacy test and balancing Article 8 and Article 10 rights. |
| Wainwright v Home Office [2004] 4 AC 406 |
No general tort of invasion of privacy; privacy protection through breach of confidence and Convention rights. |
Confirmed the legal framework for privacy claims and the absence of a standalone tort of privacy. |
| Von Hannover v Germany [2004] EMLR 21 |
Broadened the scope of 'private life' under Article 8 to include ordinary family activities in public and emphasized protection from media intrusion. |
The court considered Von Hannover as requiring a wider approach to privacy rights than previously recognized under English law. |
| Sciacca v Italy (2006) 43 EHRR 20 |
Confirmed Von Hannover principles and extended privacy protection to ordinary persons in public contexts. |
Supported the view that private life includes a zone of interaction even in public contexts, reinforcing the application of Article 8. |
| McKennitt v Ash [2006] EMLR 178 |
Recognition of legitimate expectation of privacy in relatively public circumstances and application of Von Hannover principles. |
Applied Von Hannover to English law, acknowledging a broader scope for privacy protection but distinguishing trivial or anodyne information. |
| Hosking v Runting [2005] 1 NZLR 1 |
No cause of action for breach of privacy in public place photographs absent reasonable expectation of privacy and highly offensive publication. |
Used as a comparative authority highlighting the difficulty of establishing privacy claims for public place photography. |
| Peck v United Kingdom (2003) 36 EHRR 719 |
Publication of CCTV footage in public place can violate Article 8 if it goes beyond normal exposure and causes humiliation. |
Identified situations where public place photography or filming can infringe privacy rights due to the nature and extent of publication. |
| John v Associated Newspapers Ltd [2006] EMLR 722 |
Denied reasonable expectation of privacy for innocuous photographs of a public figure in public place without harassment. |
Applied Von Hannover principles but emphasized the absence of harassment and trivial nature of the photographs. |
| R (Ullah) v Special Adjudicator [2004] 2 AC 323 |
National courts must follow Strasbourg jurisprudence unless there is a strong reason not to. |
Guided the court's approach to reconcile English law with European human rights jurisprudence. |
| A-G v Blake [2001] 1 AC 268 |
Account of profits may be awarded as a remedy for breach of contract or confidence, measured by benefit gained by wrongdoer. |
Distinguished as inapplicable to Data Protection Act claims which do not confer property rights in personal data. |
Court's Reasoning and Analysis
The court began by identifying the factual background and the legal framework governing privacy, breach of confidence, and data protection claims. It recognized that the Plaintiff is a child of a public figure and that the photograph was taken covertly without consent in a public place.
The court reviewed English authorities, notably Campbell, which established the reasonable expectation of privacy test and the integration of Convention rights into breach of confidence claims. It noted that before the Human Rights Act 1998, English law did not recognize privacy rights in public places, but this has evolved.
The court considered Strasbourg jurisprudence, particularly Von Hannover and Sciacca, which broadened the concept of private life to include ordinary family activities even in public places and recognized a legitimate expectation of privacy for public figures and their families.
However, the court found that these Strasbourg principles conflicted with existing English authority, especially Campbell, which remains binding. The court emphasized the need to balance Article 8 privacy rights against Article 10 freedom of expression rights, particularly the role of the press in a democratic society.
The court analyzed the facts, noting the photograph depicted innocuous family activity without any embarrassing or intimate information and that the Plaintiff and his parents suffered no distress or harm from the taking or publication of the photograph.
The court found that routine acts in public places, such as the Plaintiff’s family outing, do not attract a reasonable expectation of privacy under current English law as interpreted in Campbell. It expressed sympathy for the parents’ wish to shield their children from intrusive publicity but held that the law does not provide a press-free zone for ordinary public conduct.
Regarding the Data Protection Act claim, the court held that Company B was a data controller and the photograph constituted personal data, including sensitive personal data to the extent it indicated racial origin. However, the processing was lawful and fair, and although Company B failed to provide prescribed information, this did not cause damage or distress to the Plaintiff. The court rejected arguments that failure to register as a data controller invalidated the defense or gave rise to compensation claims.
In conclusion, the court determined that the Plaintiff’s claims under breach of confidence, privacy, and data protection had no reasonable prospect of success and should be struck out.
Holding and Implications
The court's final decision is to STRIKE OUT the Plaintiff's claim against Company B.
The direct effect is that the Plaintiff’s claims for injunction, damages, or account of profits for breach of confidence, invasion of privacy, misuse of private information, and Data Protection Act violations are dismissed. No new precedent is established beyond reaffirming the binding authority of Campbell and the limited scope of privacy rights in public places under English law despite Strasbourg developments. The decision underscores the continuing primacy of freedom of expression and the press's role in public life, limiting privacy protections for innocuous family activities conducted in public.