Factual and Procedural Background
On 8 November 2004, the parents of a young child, hereafter referred to as the Plaintiff, were walking in a public street in The City when a photography agency, Company B, covertly took a photograph of the family group including the Plaintiff, who was approximately 19 months old at the time. This photograph was later published without consent in a magazine on 3 April 2005. Proceedings were issued on 24 June 2005 in the name of the Plaintiff, represented by his parents as litigation friends, against the publishers of the photograph and Company B. The claim against the publisher was settled, leaving Company B as the sole defendant.
The Plaintiff alleges infringement of his right to respect for private life under Article 8 of the European Convention on Human Rights (the Convention) and also brings claims under the Data Protection Act 1998 (DPA). Company B applied to strike out the claim or for summary judgment. The application was heard by Judge [Last Name], who struck out the claim on 7 August 2007, assuming the facts alleged were true. The Plaintiff obtained permission to appeal on the basis that the case raised important points about the relationship between key privacy decisions.
Additional photographs and evidence were disclosed after the initial order, and the appeal court agreed to consider the appeal on the basis that the facts in the amended particulars of claim were true.
Legal Issues Presented
- Whether the Plaintiff, a young child, had a reasonable expectation of privacy in relation to a covertly taken photograph published without consent.
- Whether the publication of the photograph infringed the Plaintiff's rights under Article 8 of the Convention.
- How to balance the Plaintiff's right to privacy under Article 8 against the defendant's right to freedom of expression under Article 10.
- Whether the claims under the Data Protection Act 1998 are sustainable in light of the privacy considerations.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff, as a child, has a distinct right to privacy separate from that of his parents, which should be protected under Article 8.
- The covert taking and publication of the photograph without consent, especially given the Plaintiff's status as the child of a famous parent, infringes his reasonable expectation of privacy.
- The judge below erred in focusing too much on the parents' rights and not sufficiently on the Plaintiff’s individual rights.
- The publication was not a mere incidental or innocuous event but part of a deliberate commercial exploitation by the defendant.
- The balancing exercise between Articles 8 and 10 was not properly undertaken, particularly regarding the impact on the child.
- The Data Protection Act claims should be reconsidered at trial as the processing of the Plaintiff's personal data was likely unlawful if Article 8 is engaged.
Respondent's Arguments
- The judge held that the Plaintiff did not have a reasonable expectation of privacy in relation to the photograph taken in a public place during a routine family activity.
- The case was materially indistinguishable from precedent where similar claims failed, notably Hosking v Runting, where the court found no reasonable expectation of privacy for children photographed in public.
- The defendant relied on the principle that there is no general right to control one’s image and that mere covert photography in public does not engage Article 8.
- Publication was justified by freedom of expression under Article 10.
- The judge considered that routine activities in public places do not attract a reasonable expectation of privacy, and the claimant’s mother’s sensitivity did not alter the legal boundaries.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Campbell v MGN [2004] UKHL 22 |
Established the test of reasonable expectation of privacy under Article 8 and the balancing exercise with Article 10 rights. |
The court emphasized the objective test of reasonable expectation of privacy, distinguishing between taking and publication of photographs, and held that privacy rights can be infringed even in public places depending on context. |
| Von Hannover v Germany (2005) 40 EHRR 1 |
Broader interpretation of private life under Article 8, including protection from publication of innocuous photographs of public figures in public places. |
The court took a wider view of privacy rights than Campbell, recognizing protection for private family activities even when conducted in public, influencing the appeal court's reasoning. |
| McKennitt v Ash [2006] EWCA Civ 1714 |
Confirmed that Articles 8 and 10 are integral to privacy torts and clarified the two-stage test: reasonable expectation of privacy and balancing with freedom of expression. |
The court relied on this case to support the approach that the first question is whether Article 8 is engaged, with balancing to follow if so. |
| Hosking v Runting [2005] 1 NZLR 1 |
Two-stage test for privacy claims: reasonable expectation of privacy and whether publication would be highly offensive. |
The judge below applied this case as dispositive, but the appeal court distinguished it as applying a different test and not binding in the UK context. |
| Peck v United Kingdom (2003) 36 EHRR 41 |
Publication of CCTV footage showing a vulnerable moment can infringe privacy under Article 8. |
Used to distinguish cases involving publication of embarrassing or intrusive images from mere photography in public. |
| Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 |
Critique of the 'highly offensive' test for privacy, emphasizing the importance of reasonable expectation of privacy. |
Supported the view that 'highly offensive' is a stricter test and more relevant to proportionality than to establishing a privacy breach. |
| R v Central Independent Television Plc [1994] Fam 194 |
Recognition of children's rights to privacy in media contexts. |
Referenced to support the importance of protecting children's privacy interests in media law. |
| Rogers v Television New Zealand Limited [2007] NZSC 91 |
Discussion of privacy claims and reasonable expectation of privacy in relation to children. |
Noted dissenting opinions on the applicability of Hosking v Runting, indicating some uncertainty in the law. |
| Sciacca v Italy (2006) 43 EHRR 20 |
Supporting the principle that publication of private life details without public interest justification infringes Article 8. |
Reinforced the appeal court's view on privacy rights related to private family life. |
Court's Reasoning and Analysis
The court undertook a detailed analysis of the applicable legal principles, focusing primarily on the reasoning in Campbell v MGN and Von Hannover v Germany. It recognized that the key question is whether the Plaintiff, a young child, had a reasonable expectation of privacy in the circumstances. The court emphasized that this is an objective question considering all relevant factors, including the Plaintiff's attributes, the nature of the activity, the place, the purpose and manner of the intrusion, absence of consent, and the effect on the Plaintiff.
The court identified that children have a distinct and important privacy interest, supported by domestic and international law, including the United Nations Convention on the Rights of the Child and the Press Complaints Commission's Code. It rejected the lower court’s view that the claim was "artificial" because it was brought in the child's name and stressed that the child's rights are separate from those of the parents.
While acknowledging that covert photography in a public place does not automatically engage Article 8, the court found that the context here—covert photography by a commercial agency for publication without consent of a child of a famous parent—was sufficient to raise an arguable case of a reasonable expectation of privacy. The court further distinguished the present facts from precedent cases such as Hosking v Runting, noting differences in legal tests and factual circumstances.
The court also emphasized the importance of balancing the Plaintiff's privacy rights under Article 8 against the defendant's freedom of expression under Article 10, but noted that the lower court did not undertake this balancing exercise because it struck out the claim at a preliminary stage.
Regarding the Data Protection Act claims, the court held that if Article 8 is engaged in the Plaintiff’s favour, then the defendant's processing of personal data would be unlawful and unfair, requiring a factual trial to resolve issues including the meaning of "damage" under the Act.
Holding and Implications
The court ALLOWED THE APPEAL and directed that the case proceed to trial on all issues, including the privacy and Data Protection Act claims.
This decision means that the Plaintiff’s claim that his Article 8 rights were infringed by the covert taking and publication of his photograph is at least arguable and must be adjudicated at trial rather than struck out at a preliminary stage. The ruling affirms the distinct privacy rights of children, especially in contexts involving media publication and famous parents, and clarifies that the balancing of privacy and freedom of expression rights requires a full factual inquiry.
No new legal precedent was established beyond the application of existing privacy principles to the facts of this case, but the decision underscores the court’s willingness to protect children's privacy interests in media law.