Full case report
RocknRoll v News Group Newspapers Ltd
Reference  EWHC 24 (Ch)
Court High Court (Chancery Division)
Judge Briggs J
Date of Judgment 17 Jan 2013
Privacy – Injunction – Expectation of Privacy – Public Figure – Public Domain – Public Interest
C married the actress Kate Winslet in December 2012. D became aware of and wanted to publish photographs of C taken at a fancy dress party in 2010 which showed C partially-naked and were described by him as “innocent but embarrassing”. The photographs were taken by a friend and had been available on the friend’s Facebook page initially only to his 1,500 friends, until, he said, a recent change in privacy settings which made them available to the public. By the time of the hearing the photographs had been removed. C sought an interim injunction to prevent publication.
Whether C should be granted an injunction:
(1) Did C have a reasonable expectation of privacy in the photographs and their content?
(2) Was C likely to succeed, balancing C and his family’s Article 8 rights with the countervailing Article 10 considerations?
Granting the injunction:
(1) C did have a reasonable expectation of privacy in the photographs and their content:
(a) The photographs were taken at a private party on private premises and show him behaving in a way he would be unlikely to behave in public;
(b) C had consented to the photographs being taken and shared with mutual friends, but this did not equate to consent to them being published in a national newspaper – D was most unlikely to establish such consent at trial;
(c) C had not become a public figure in his own right, either through publicity relating to his first marriage, or his job at Virgin Galactic. Only on one occasion could he be said to have courted publicity, and he had sought no publicity about his relationship with Ms Winslet. In any event, the argument that having courted publicity on the occasion of his first marriage acts as type of waiver of privacy about this aspect of his life is an example of the discredited “zone argument”.
(d) The photographs had not come into the public domain through their posting on Facebook. It was not the case that there was nothing by way of privacy left to be protected by an injunction. The photographs had not been easily accessible, an internet search of C’s name would not have found them. A tip-off was the most likely source.
(2) As to the balancing exercise, C was likely to succeed:
(a) The photographs and their contents would not contribute to a debate about matters of public interest. Nothing illegal or immoral was depicted and there was no hypocrisy argument to be made (Ferdinand v NGN  EWHC 2454 (QB)). That a newspaper wishes to criticise the behaviour of someone in the public eye does not necessarily equate to contributing to a debate of public interest (von Hannover v Germany (2005) 40 EHRR 1). Although a margin of appreciation is to be given to journalists, the court can and should seek to assess, on the facts of the case before it, whether publication is sought in order to genuinely inform a debate of public interest, or rather to titillate those readers who are interested in the behaviour of persons in the public eye.
(b) The timing of the threatened publication – very shortly after it came to the attention of the media that C had married Ms Winslet – also suggested that D intended to provide details of the private peccadillos of C to its readership rather than to contribute to a debate of public interest.
(c) There was a real risk that publication would result in teasing or ridicule of Ms Winslet’s children at school, such that it could damage the caring family relationship which C was seeking to establish with them. This is an important factor in the balancing exercise (ETK v NGN  EWCA Civ 439).
(d) C was not a person with a substantial public profile, either through his work or his marriages.
This case demonstrates the application well-established principles of both domestic and European case law but will be of interest to those in the media where it relates to privacy and public domain arguments regarding images available to substantial numbers of people on social media, a day to day consideration for many picture editors.
The judge took a practical view of the public domain argument. Private information cases, where there may still be Article 8 rights to protect despite the material having been made available to some or all of the public, are to be distinguished from trade-secret confidentiality cases where once the information has been made publicly accessible it is no longer confidential. Just because material can be accessed via a social networking site does not necessarily mean it is public domain and can be published. The Courts have previously concluded that the intrusional rather than confidential aspects of privacy actions may support a reasonable expectation of privacy, even when the genie may be considered to be outside the bottle.
As to who is to be considered a public figure, it is interesting to contrast this case with McClaren v NGN EWHC 2466 (QB). Here C, although currently of interest to the public (and therefore the newspapers), does not have and has never had a public profile in his own right.
Schillings for C, Simons, Muirhead & Burton for D
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