Facts
- David Murray was the young son of Dr Neil Murray and Joanne Murray, also known as J.K. Rowling.
- On 8 November 2004, David was with his parents on a public street in Edinburgh, with Dr Murray pushing David in a buggy.
- A photographer affiliated with Big Pictures (UK) Limited (Big Pictures), a photo agency, took a colour photograph of the family group without their knowledge.
- The photograph was taken covertly, from across the street, using a telephoto (long-range) lens.
- The image showed David in the buggy with visible details (including aspects of his face and appearance), as well as his parents.
- Consent to take or publish the photograph was neither sought nor given.
- The photograph was published in the Sunday Express magazine on 3 April 2005.
- Proceedings were issued in David’s name (by his parents as litigation friends) against the publisher and Big Pictures; the claim against the publisher was later settled, leaving Big Pictures as the sole defendant.
- David’s pleaded causes of action included misuse of private information / infringement of his Article 8 right to respect for private life, and a claim under the Data Protection Act 1998 (DPA).
- Big Pictures applied to strike out the claim or obtain summary judgment. Patten J struck out the claim and gave judgment for Big Pictures on the basis that, as pleaded, David had no reasonable expectation of privacy while on a public street.
- On appeal, additional photographs taken on the same occasion (stored digitally) had been disclosed and were included in the amended pleadings for the purpose of assessing whether the claim was arguable.
Issues
- Whether, on the pleaded/assumed facts, a young child had a reasonable expectation of privacy in relation to covert photographs taken in a public street for publication in the press.
- Whether the claim for misuse of private information (reflecting the Article 8/Article 10 balance) was so clearly bound to fail that it could be struck out or disposed of by summary judgment.
- How the approach in Campbell v MGN should be applied alongside the European Court of Human Rights decision in Von Hannover v Germany when assessing photographs of everyday activities in public places.
- Whether the DPA claim was arguable, including whether the photographs were “personal data” and whether any journalism-related exemption could be resolved at an interlocutory stage.
Decision
- The Court of Appeal allowed David Murray’s appeal.
- It set aside the order striking out the claim and granting summary judgment to Big Pictures.
- It held that, on the assumed facts, it was properly arguable that David had a reasonable expectation of privacy in relation to the covert photographs, even though they were taken in a public street.
- It held that the required balancing between Article 8 (private life) and Article 10 (freedom of expression) was fact-sensitive and should not have been finally determined on a strike-out/summary judgment application.
- It held that the DPA claim was also arguable and should proceed, with any reliance on statutory exemptions requiring a fuller factual record.
- The case was remitted for further proceedings.
Legal Principles
- Misuse of private information is assessed by asking (1) whether the claimant had a reasonable expectation of privacy in the relevant material, and (2) if so, whether publication is justified after balancing privacy rights against freedom of expression.
- The fact that a photograph is taken in a public place does not automatically prevent a reasonable expectation of privacy; the assessment depends on all the circumstances, including the subject matter, the way the image was obtained, and the intended use.
- Children can have Article 8 interests that warrant strong protection, and a child’s claim is not defeated merely because a parent is famous.
- Where photographs are taken covertly and aimed at press publication to satisfy curiosity about a celebrity’s family life (rather than contributing to public discussion), the Article 8 side of the balance may carry greater weight.
- English courts must take account of Strasbourg case law when developing and applying domestic privacy principles; Von Hannover is relevant to photographs of routine activities undertaken in public.
- Strike-out and summary judgment are generally inappropriate where success depends on a close evaluation of context and proportionality, and where the pleaded facts (assumed true) could support the claim.
- Photographs capable of identifying an individual can constitute personal data for DPA purposes; whether processing is fair/lawful and whether any journalism exemption applies may depend on facts not suitable for final resolution at an interlocutory stage.
Conclusion
The Court of Appeal held that David Murray’s privacy and data protection claims arising from covert photographs taken on an Edinburgh street were arguable and should not have been disposed of summarily, because the reasonable-expectation inquiry and the Article 8/Article 10 balance required a fuller factual assessment, especially given the claimant’s status as a child and the circumstances in which the images were obtained and published.