The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The claim was struck out. In effect this was an application for protection of the mother, and the court was being asked to extend the jurisprudence in Campbell v MGN to follow more recent cases in the ECHR. The mother had always kept her children out of the media, despite continuous intrusions. ‘one needs, I think, to differentiate between the case where the child has for medical or some other personal reasons come to the knowledge of the general public and for those very reasons may be particularly vulnerable to harm from intrusive press exposure and the much more ordinary case (such as the present one) in which the child comes into focus largely if not exclusively by being in the company of his or her much more famous parents. Even in cases of this kind the Court is bound to have regard to any particular harm (actual or prospective) which the child may suffer from having his image publicly displayed. But in most such cases (and on the pleadings this is no exception) the child will have suffered no upset or harm. The purpose of the claim will be to carve out for the child some private space in relation to his public appearances. ‘ The starting point is to establish whether an article 8 human right is engaged, and only then to balance the rights of te child of of the media. The photographs were taken in a public place. That was not itself conclusive, but there were none of the context which might say that an article 8 issue had arisen.
The boundaries of what any individual can reasonably expect to remain confidential or private are necessarily influenced by the fact that we live in an open society with a free press. If harassment becomes an issue then it can and should be dealt with specifically as it is by the 1997 Act.
As to the claim under the Data Protection Act, though the defendant was not properly registered and therefore the data was not processed properly or fairly, that Act recompensed only financial loss, and no such loss appeared here.
‘The question whether a child in any particular circumstances has a reasonable expectation for privacy must be determined by the court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their children’s lives in a public place should remain private . . The court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing.’
Judges:
Patten J
Citations:
[2007] EWHC 1908 (Ch), Times 04-Oct-2007, [2008] 1 WLR 2846, [2007] UKHRR 1322, [2007] Fam Law 1073, [2007] ECDR 20, [2007] EMLR 22, [2007] HRLR 44, [2008] 1 FLR 704, [2007] 3 FCR 331
Links:
Statutes:
European Convention on Human Rights 8, Protection from Harassment Act 1997, Data Protection Act 1994 4(4)
Jurisdiction:
England and Wales
Citing:
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Sciacca v Italy ECHR 11-Jan-2005
The court was asked whether the applicant’s rights under Article 8 had been infringed by the release to the press of an identity photograph taken of her by the Italian Revenue Police while she was under arrest and investigation for various criminal . .
Cited – Prince Albert v Strange ChD 8-Feb-1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
Cited – Coco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
Cited – Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 15-Nov-2001
(High Court of Australia) The activities of a company which processed possum meat for export (‘what the processing of possums looks,and sounds like’) were not such as to attract the quality of being confidential for the purpose of the law protecting . .
Cited – MGN Ltd v Attard 19-Oct-2001
Complaint was made about the publication of photographs of the survivor of conjoined twins who was only one year old. The photographs were taken in a street in Malta but followed the earlier publication of photographs and press articles based on . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Hosking and Hosking v Simon Runting and Another 25-Mar-2004
(Court of Appeal of New Zealand) A photographer was commissioned to take photographs of the children of a well known television personality. He took pictures of Mr Hosking’s eighteen month old twins being pushed down a street by their mother. Mr and . .
Cited – Peck v The United Kingdom ECHR 28-Jan-2003
peck_ukECHR2003
The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Johnson v The Medical Defence Union CA 28-Mar-2007
The claimant asserted that the 1998 Act created rights between the parties that are in substance though not in form of a contractual nature; and rights to compensation for infringement of those primary rights of a nature that did not previously . .
Cited – John v Associated Newspapers Ltd QBD 23-Jun-2006
Photographs were taken of Sir Elton John in a London street outside his home. They showed him dressed in a tracksuit and wearing a baseball cap but were otherwise innocuous.
Held: The court refused to grant an injunction on the basis that Sir . .
Cited by:
Appeal from – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.
Media, Human Rights, Children, Information
Updated: 11 July 2022; Ref: scu.258616