Misuse of private information
Paul Weller has succeeded in his case for misuse of private information on behalf of his children against Associated Newspapers Limited. An article appeared in The Mail Online on the 22nd October 2012 with the caption “A family day out” accompanied by photographs of Paul Weller and some of his children at a café in Santa Monica, California, his son Dylan being referred to as Hannah Weller, Paul Weller’s wife. Dylan, the twins, John Paul and Bowie were all identifiable from the photographs taken.
The Claimant brought proceedings for:-
(a) Damages for misuse of private information and breach of the Data Protection Act,
(b) An Injunction.
The Mail removed the article because of the incorrect reference to Dylan as Hannah. The article had received 34,000 viewings of which 24,000 originated in England and Wales so relatively small as it had not appeared in the paper edition.
The issues were
- Was there a reasonable expectation of privacy?
- How should the balance be struck between the Claimants’ rights to privacy and the Defendant’s right to publish?
- Was the publication a breach of the Data Protection Act?
- The relief the Claimants were entitled to?
Article 8 of the ECHR provides that “everyone has the right to respect for his private and family life, his home and his correspondence“. Article 10 provides that “everyone has the right to freedom of expression”.
Murray v Express Newspapers sets out the factors to consider where there is an issue of whether there was a reasonable expectation of privacy
“question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, 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”
Where the parties do not agree as to whether the reasonable expectation of privacy needs to be known or should have been known to the publisher, to be actionable it was clear that the broad test allowed the Court to assess what the publishers knew or ought to have known, what they did not know about and could have known when published which would demonstrate no real expectation of privacy.
The location of the taking of the photographs was discussed, as in California it is lawful to take and publish photographs. Mr Justice Dingemans held that this did not satisfy the first and second applicable tests as, in this case, the publication was in England and Wales, the Claimant’s children’s faces were clearly visible and not pixelated. The question as to whether this was lawful would be decided by English law not Californian.
The Judge looked at two cases on Article 8 of the ECHR and relating to the importance of photographs, one being a European case, Von Hannover v Germany and the other from England, Murray v Express Newspapers which gave a different prospective of a child Claimant to that of an adult Claimant.
He said
“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”
AAA v Associated Newspapers Ltd [2013] it was held that the activities of parents could affect the child’s reasonable expectation of privacy.
All the Claimant’s children had a reasonable expectation of privacy, their faces were clearly shown on a family trip with their father and their surnames printed.
Mr Justice Dingemans accepted that by Mrs Weller tweeting about her twin sons and posting photos of them she had been naive in light of her concerns raised in her witness statement but he added she had gone to great lengths to avoid her twin sons from being clearly identified.
The photographs were not taken amongst crowds of unknown children but clearly identified the claimants individually. It could not be assumed by the Defendants that because the Claimant and his wife had not complained before this implied any form of consent to the photographs being taken.
Discussing the photographs being taken and published in California, Mr Justice Dingemans said that the Claimants should still be able to enjoy a reasonable expectation of privacy.
The photographs taken were particularly upsetting for Dylan, the Mail Online did not know the particular circumstances they were taken but it must have been evident that they were taken without consent as underneath was the word “spotted”, referring to Paul Weller and his family.
Both sides submitted that Article 10 is engaged in every case such as this.
The Judge then referred to the second test by applying the 5 points raised in the Von Hannover case to the balancing test between Article 8 and 10:-
- contribution to a debate of general interest
- how well known is the person concerned and what is the subject of the report
- prior conduct of the person concerned
- content, form and consequences of the publication
- circumstances in which the photos were taken
The Judge found that the Article 8 rights overrode the article 10 rights. The photographs of the children out on a family trip with their father, showing the children’s faces with their emotions displayed, their surnames published thus identifying them, all being under their Article 8 rights even though publication would be lawful in California.
The claims for breach of The Data Protection Act were established.
Mr Justice Dingemans awarded the Claimants’ children a total of £10,000 for the misuse of private information. Dylan Weller then aged 16 years was awarded the larger share from that amount, £5,000.00, his twin brothers both 10 months old, the lesser sum of £2,500 each as their compensation was limited to the publication of their facial features whereas, in addition, Dylan was compensated for the immediate embarrassment suffered by him.
The Judge refused to grant an injunction for the Claimants noting the Claimants failure to identify future publication and photographs as there was no further evidence that The Mail Online would publish the photographs again.
Associated Newspapers Limited have indicated they intend to appeal.