Last week, Mr Justice Dingemans handed down judgment in Weller v Associated Newspapers [2014] EWHC 1163 (QB), ruling that the privacy of the children of singer and songwriter Paul Weller had been breached by Associated Newspapers Limited, the publishers of the Daily Mail and the Mail Online, and awarding the Weller children a total of £10,000 in damages.

Following the verdict, the Mail Online issued a statement expressing concern that the decision had created “unfettered image rights” for children. Whilst the case is certainly of interest given its profile and the fact that privacy claims rarely go to trial, the judgment was not an entirely surprising or landmark ruling.  The case is, however, a lucid example of the invoking of the relatively new equitable tort of misuse of private information.

This blog article reviews the law governing whether a child’s privacy rights have been unlawfully breached, as applied by the Judge in the Weller case.

On 21 October 2012, the Mail Online ran an article headed ‘A family day out’, accompanied by seven photographs of Paul Weller and three of his children:  Dylan, who was 16 at the time the photos were taken, and ten month-old twins, John-Paul and Bowie. Some of the photographs showed the unobstructed faces of Paul Weller’s children whilst they were out together on a shopping trip in public and eating in a café in Los Angeles.

Upon notification from readers of a mistake in the story, the article was removed by the Mail the following day by which point it had already received 34,000 hits. Weller subsequently brought action against the Daily Mail on behalf of his children, seeking damages and an injunction.

In giving judgment, Mr Justice Dingemans applied the established two limb test for the tort of misuse of private information: (1) whether the Claimants had a reasonable expectation of privacy (as set out by the Court of Appeal in Murray v Express Newspapers) and (2) balancing all the circumstances, whether the individual’s right to privacy should yield to the publisher’s right to freedom of expression (as identified by the European Court of Human Rights in Von Hannover (No.2)).

(1) The Privacy test: is there a reasonable expectation of privacy?
The test takes into account the following factors:
a)     The attributes of the claimant
b)    The nature of the activity in which the claimant was engaged
c)     The place at which it was happening
d)    The absence of consent and whether it was known or could be inferred
e)     The effect on the claimant; and
f)     The circumstances in which and the purposes for which the information came into the hands of the publisher.

In dealing with these, the Judge held that the Weller children did have a legitimate expectation of privacy as although their activities took place in a public area (shopping in the street and eating in a café visible from the street), they were ultimately engaged in private family time and the publication of the photographs was upsetting for the children and could potentially have security implications.

Image rights
As established in previous case law, the fact that the children’s faces were identifiable was of significance as a person’s image constitutes one of the chief aspects of his personality. The photographs showed a range of the children’s emotions and were published alongside the children’s names (with the exception of Dylan who was wrongly identified as her step-mother, Hannah). However, it is important to note that establishing whether the image of the child is one of its attributes is just one equal factor in the two-limb test; the test does not stand or fall on this factor alone and accordingly, no autonomous image rights exist.

Lawful publication in California
Of contention between the parties was the significance to be attached to the fact that the photographs were taken in California, where it was lawful to take and publish the photographs. The Judge held that whilst this aspect should be considered, it did not prevent the children from having a reasonable expectation of privacy in relation to publication of the pictures in the UK.

Defendant’s knowledge
The parties disagreed as to whether it was necessary to determine that the publisher knew or ought to have known there was a reasonable expectation of privacy in order to satisfy the first limb of the test. The Judge clarified that the correct approach to take was set out in Murray which incorporated the publisher’s knowledge into the factors to be considered for the first limb test, set out at (d) and (f) above (the absence of consent and the circumstances in which the images came into the publisher’s possession). As Paul Weller had asked the photographer to stop taking the photographs, it was clear he had not given consent to the pictures. Although the Mail Online were not aware of these circumstances, the photographer sent the images to the Mail Online with the caption that the children had been “spotted” out on a walk, so it could be inferred that the Mail Online were aware that there was no consent. Conversely, the Judge deemed that consent could not be inferred from the fact that Paul Weller had never notified the Mail Online beforehand to pixelate the faces of his children.

(2) The balancing test: should the individual’s right to privacy yield to the publisher’s right to freedom of expression?

This test set out in Von Hannover (No.2) weighs the Article 8 rights to privacy against the Article 10 rights to freedom of expression by considering factors including whether publication contributes to a debate of public interest, the prior conduct of the person concerned and the circumstances in which the photos were taken.

The interests of a child attract higher protection in privacy law than an adult’s and a child of a famous parent has the same reasonable expectation of privacy as an ordinary child. However, these rights can be affected by the prior conduct of the child’s parents in relation to his/her privacy.  This is of increasing significance in an age where many celebrities share their private life with fans and the general public on social media.  Weller himself had given interviews with the press where he discussed his children and his wife had shared pictures of the children on her public Twitter account (although their faces were not visible). However, this was not sufficient to swing the balance in favour of the defendant’s right to publish. The Judge held that Paul Weller’s behaviour had been consistent with the fact that he did not want faces of his children to be visible and he had previously asked for a photo of Bowie’s face to be removed from a social media account of a family member on discovery that it had been published to the public.

The Judge was satisfied that the claimants had established both limbs of the test and accordingly awarded £2,500 each in damages to the twins and £5,000 to Dylan, which took into account that only Dylan had suffered any real embarrassment from publication. The Judge did not award the injunction sought since he was satisfied that the Mail Online would not republish the photographs but instead ordered the defendant to give an undertaking to this effect.

Whether a child’s private information has been misused will depend on the facts of each individual case; no “unfettered” image rights have been created. Still, children are afforded higher protection than adults, and although the prior publicity of the parent or guardian of the child can negatively affect the strength of the child’s case, it does not necessarily render publication of the child’s private information as lawful.

Privacy trials are still very rare, partly due to the fact that prevention of publication is the best remedy, leaving a claim for misuse of private information after publication as the last resort. Accordingly, a parent concerned with the privacy of their child would do well to notify publishers in advance that they do not consent to invasion of their child’s privacy, and also to request that any photographs published are pixelated. Helpfully for a claimant, failure to do this will not preclude a successful privacy action from being bought.

Publishers, on the other hand, should take care to pixelate the images of children who are not already in the public eye, or they run the risk of legal action.

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