JK Rowling's son wins privacy fight

The English Court of Appeal ruled today that photo agency Big Pictures breached Rowling's son's right to privacy and family life when it took long lens photographs of her son being pushed in a pushchair.

This is a groundbreaking judgment. It is the first time that the Court of Appeal has ruled that privacy is engaged when an inoffensive, ordinary photograph is taken of an individual going about their ordinary everyday business in the high street. It follows the Canadian and French approach to privacy and goes even beyond - I think - what the European Court of Human Rights would rule should it ever have such a case before it.

At the High Court, Mr Justice Patten had ruled against Rowling's son, saying that "on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy; and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and the decision in Campbell, I am bound to follow Campbell in preference" (paragraph 68 of the High Court judgment).

Wrong, says the Court of Appeal: "We have reached a different conclusion from that of the judge. In our opinion it is at least arguable that David had a reasonable expectation of privacy. The fact that he is a child is in our view of greater significance than the judge thought." The Court goes on to refer to the UN Convention on the Rights of the Child and to the PCC Code, and then points out the neither Campbell nor Van Hannover were cases about children. So, the Court argues, it has before it a relatively clean slate on which to write new law. It then states (and I'm quoting at length with a few chops - notably the references to the New Zealand Court of Appeal's ruling in Hosking v Runting):

"50. ... the parents' wish, on behalf of their children, to protect the freedom of the children to live normal lives without the constant fear of media intrusion is (at least arguably) entirely reasonable and, other things being equal, should be protected by the law. It is true, as the judges say at [164], that the photographs showed no more than could be seen by anyone in the street but, once published, they would be disseminated to a potentially large number of people on the basis that they were children of well-known parents, leading to the possibility of further intrusion in the future. If the photographs had been taken, as Lord Hope put it at [123] of Campbell, to show the scene in a street by a passer-by and later published as street scenes, that would be one thing, but they were not taken as street scenes but were taken deliberately, in secret and with a view to their subsequent publication. They were taken for the purpose of publication for profit, no doubt in the knowledge that the parents would have objected to them.

...

52. The approved test is not whether a person of ordinary sensibilities would find the publication highly offensive or objectionable, even bearing in mind that young children are involved, but (as Lord Hope put it in the passage quoted at [35] above) what a reasonable person of ordinary sensibilities would feel if he or she was placed in the same position as the claimant and faced with the same publicity. The judges did not consider either of the two questions posed through the eyes of the reasonable child, or (more realistically) through the eyes of the reasonable parent on behalf of the child.

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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.

58. It is important to note that so to hold does not mean that the child will have, as the judge puts it in [66], a guarantee of privacy. To hold that the child has a reasonable expectation of privacy is only the first step. Then comes the balance which must be struck between the child's rights to respect for his or her private life under article 8 and the publisher's rights to freedom of expression under article 10. This approach does not seem to us to be inconsistent with that in Campbell, which was not considering the case of a child.

59. In these circumstances we do not think that it is necessary for us to analyse the decision in Von Hannover in any detail, especially since this is not an appeal brought after the trial of the action but an appeal against an order striking the action out. Suffice it to say that, in our opinion, the view we have expressed is consistent with that in Von Hannover, to which, as McKennitt v Ash makes clear, it is permissible to have regard. We do not disagree with the judge's summary of the decision in Von Hannover which we have quoted at [43 ix)] above. Mr Warby drew our attention to the oral submissions made to the ECtHR by Mr Prinz on behalf Princess Caroline, where he emphasised the campaign of harassment conducted against her by the German media. That was indeed part of the context in which the decision was made. For his part Mr Spearman stressed the fact that some of the photographs, the publication of which was held to infringe Princess Caroline's rights under article 8, showed her doing no more than walking in public.

60. The context of Von Hannover was therefore different from this but we have little doubt that, if the assumed facts of this case were to be considered by the ECtHR, the court would hold that David had a reasonable expectation of privacy and it seems to us to be more likely than not that, on the assumed facts, it would hold that the article 8/10 balance would come down in favour of David. We would add that there is nothing in the Strasbourg cases since Von Hannover which in our opinion leads to any other conclusion: see eg Reklos and Davourlis v Greece, petition no 1234/05, 6 September 2007.

61. In these circumstances, the judge was in our judgment wrong to strike out David's claim on the ground that he had no arguable case that he had a reasonable expectation of privacy. Understandably, the judge did not consider whether, if article 8 was engaged, David had an arguable case that the balance should be struck in his favour. In our opinion David has an arguable case on both points and his parents should be permitted to take his claim to trial on his behalf."

So the Court rules that there was an arguable expectation of privacy in the taking and publication of the photograph, and hints that, at trial, a court would probably rule for Rowling's son. This is novel and represents a further creep in privacy law, and a corresponding restriction of freedom of expression. This will be of immediate interest to paparazzi, and few will cry for them. But the longer-term implication is that the realm of privacy has been extended, beyond what the European Court has determined in cases such as Von Hannover, and that certainly is concerning.