The judgment in the privacy case of three of pop singer Paul Weller’s children (Weller v Associated Newspapers) has caused a little confusion – not least among some of the press who might be expected to need to understand it best.
Mr Justice Dingemans has perhaps added another small brick in the developing English law of privacy – clarifying when pictures of stars can and cannot be published when they are going about their private lives. Here’s a brief rundown.
There is no tort of invasion of privacy in England. You can, in general, take pictures of whomever you want so long as you aren’t invading property rights to do so. Nor, broadly speaking, are their specific rights to those images belonging to the people who feature in them.
However, Dingemans notes: “After the enactment of the Human Rights Act 1998, claims for misuse of private information were absorbed into the established claim for breach confidence; see A v B plc  EWCA Civ 337 at paragraph 4. In paragraph 53 of Douglas and others v Hello! Ltd and others (No.3)  EWCA Civ 595 Lord Phillips said “we cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion”. (Para 20)
In other words a privacy law is being bit by bit put together by the courts from the old Common Law of confidence (ie misuse of confidential information) and the European Convention on Human Rights – balancing Article 8 (right to family life) with Article 10 (freedom of expression including right to publish photographs of people).
This is, of course, unsatisfactory, but politicians, who are often willing to bash “unaccountable judges” for apparently making up laws they don’t like, seem singularly unwilling to grasp this particular nettle and legislate to resolve the problems of this hybrid law-making. The first Culture and Media Secretary to suggest legislating on privacy would soon have his/her dirty private linen pored over (and pawed over) by the yellow press and hung out to dry in 108pt bold extended san serif to prove exactly what our privileged governing classes want to hide. Former Sun editor Kelvin MacKenzie couldn’t help making the same sort of claims against silk-knicker-wearing judges (male) wanting to keep their predilections and preferences for briefs private.
So where does the new judgment take us? At the heart of the issue is the question of “whether someone has a legitimate expectation of privacy” in particular circumstances.
In Campbell v Mirror Group such an expectation was found to exist when pictures of the supermodel Naomi Campbell outside a drug clinic were published – not because she had a right to hide her addiction (she had lied about it and the press asserted a right to expose those lies) but because the cameraman held in his hands material that was clearly confidential: “the information conveyed by the photographs was private information”. (Campbell para 30). But, as Baroness Hale noted in Campbell:
“The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint.” (para 154)
This, in part, is because Campbell is a model and makes a living looking gorgeous – and so it may be assumed she will maintain that image in public when not strictly on shift. And, in these censorious Heat and Sidebar of Shame times, the public has a right to assess how well she does at this. (Hale does not quite put it like that.) So what of an ageing pop star out and about with three of his children? Do they have a “reasonable expectation of privacy”?
The issues that need addressing are these: “the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher, see Murray v Express Newspapers (2007) at paragraph 36”. (Weller para 27)
The pictures were taken in Santa Monica. Something was made of the pictures having been taken in America where the First Amendment on free speech applies. This would be considered but not in any overriding way, implied Dingemans. The publication within the British jurisdiction is what matters.
On the issue of whether “a private life exists in a public setting” the distinguishing factor here (compared with Campbell) is the children:
“The decided cases establish that the position of a child claimant is different from that of an adult claimant. The courts have recognised the importance of the rights of children in many different contexts, as has the international community by the United Nations Convention on the Rights of the Child.”
Some suggestion was made that Weller had sought to present an image as a devoted father (of numerous children) with references to his family in published interviews. Weller himself said “he didn’t really have a public image as a musician and artist, and he wasn’t interested in promoting his image”. (para 90)
Something too was made of his wife, Hannah, using Twitter and making references to her family. And something was made of Dylan, now 17, being described as a model – perhaps to bring here within Hale’s definition of a public person. She had only ever done one modelling shoot at 14. And she had once attended a launch party for a brand of sunglasses.
But none of this amounted to the children’s exposing their private lives freely for the use and profit of the media. So:
“In my judgment the photographs were published in circumstances where Dylan, Bowie and John Paul had a reasonable expectation of privacy. This was because the photographs showed their faces, one of the chief attributes of their respective personalities, as they were on a family trip out with their father going shopping and to a café and they were identified by surname.”
However extraordinary their father (some like his music, some don’t), the ensemble gathered in Santa Monica was an ordinary family on an ordinary day out together. “The photographs showed how Dylan, Bowie and John Paul looked, as children of Paul Weller. The photographs also showed how Dylan, Bowie and John Paul looked on a family day out with their father.” (Paras 170-1)
They did not contribute to “a current debate of general interest” (ie public interest) the test in Von Hannover No 2. Despite public focus on the couple as proud parents, such full-face photos of the children going about their ordinary lives had not been published before – so could not be defended on “prior conduct” grounds.
There is a sense that Weller did not like profit being made by the Mail out of his children who could not assert copyright over the images. Publication from the Mail’s point of view helped in “maintaining public interest in the Mail Online and therefore profitability”. The implication of the judgment is that this is not a matter of public interest, though the press argues that such activity helps maintain the press, attracting readers and enhancing press survivability and hence diversity of opinion and freedom of speech.
Adding this up, Dingemans concluded:
“Publishing photographs of the children’s faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California.”
Crucially damages were given to the children, not to their father. Quite different conditions might apply to him, as to Naomi Campbell on a shopping jaunt. Hence the irritation of at least one legal commentator at press headlines along the lines of “Paul Weller wins privacy damages over children’s photos on Mail Online” (see Jack of Kent’s increasingly despairing tweets). He didn’t. They did.
When no clear public interest can be seen in publishing pictures, English courts are drawing up battle lines for protagonists based on legitimate expectation of privacy. The issue then becomes: has the famous complainant foregone that expectation. So evidence will be adduced about the public profile of the complainant. When we are talking about children that evidence may include such personal (yet also public) material as pictures on Twitter or Facebook or interviews in which proud parents declare their pride in their children. It would be a very great interference with family life were such statements, thoroughly to be expected of all parents, to be treated as if they were forgoing all rights to privacy for their children thenceforth.
Certainly a star’s attempt to prove himself a family man if in fact he is an adulterer and general scumbag might come under the heading of “public interest” if hypocrisy is being exposed. But it would be a terrible thing if stars cannot talk about their children – and perhaps release authorised pictures to the world – for fear that they will be giving up their legitimate expectation of privacy.
This judgment in effect supports that point. It gives famous families a certain leeway to pursue their lives – even, to some extent their children’s nascent careers, without those lives being plastered all over the papers.
An in-depth (and long) barrister’s view of the case is on Inforrm’s Blog here
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