Full case report

Weller v Associated Newspapers Limited

Reference [2014] EWHC 1163 (QB)
Court High Court (QBD)

Judge Dingemans J

Date of Judgment 16 Apr 2014


Summary

Misuse of private information- Data protection- Human rights- Photographs- Reasonable expectation of privacy- Children- Freedom of expression


Facts

The well-known musician Paul Weller brought a claim on behalf of three of his children in respect of photographs published by Associated Newspapers Limited (“ANL”) on its MailOnline website on 21 October 2012. The photographs were taken by an unnamed photographer in Santa Monica, Los Angeles, California. The photographs were of Paul Weller and the Claimants out shopping in the street and relaxing at a cafe on the edge of the street. The oldest child shown in the photographs was 16 years old and the other two children were 10 months old twins. Some of the photographs showed the faces of the Claimants. The article contained a description of the content of the photographs and of the activities being carried out by the Claimants with their father, but misdescribed one of the Claimants – the 16 year old girl – as Paul Weller’s wife. The article was removed from the MailOnline website on 22 October 2012 due to this error in the story. The Claimants contended that the pictures of their faces should have been pixelated and brought an action for damages for misuse of private information and breach of the Data Protection Act, and an injunction.


Issue

(1)    Was there a reasonable expectation of privacy?

(2)    If so, how should the balance be struck as between the Claimants’ rights to privacy on the one hand and the Defendant’s right to publish on the other?

(3)    Did the publication amount to a breach of the Data Protection Act?

(4)    What relief were the Claimants entitled to?


Held

Mr Justice Dingemans first of all considered the relevant legal principles (paragraphs [15]-[79]) and reached the following conclusions amongst others:

–  what the publisher knew, and ought to have known, was relevant to whether there was a reasonable expectation of privacy.

– the fact that it was lawful under the laws of California to take the photographs would be taken into account when assessing the legal tests in the case. Whether it was lawful to publish them in California did not determine either the first or second tests that had to be applied.

– the authorities establish that a person’s image constitutes one of the chief attributes of his personality.

– there was a public interest in a thriving and vigorous newspaper industry (following A v B).

– when considering the rights of children in this area courts should accord a primacy of importance to their interests.

(1)    Was there a reasonable expectation of privacy?

There was a reasonable expectation of privacy with reference to the relevant factors identified in Murray v Big Pictures. The images of the Claimants’ faces displayed their emotions and engagement on a private family trip carried out on the street. The Defendant knew that the photographs had been taken without consent but was not aware of the upsetting circumstances in which they were taken, and their publication was upsetting and embarrassing.

(2) If so, how should the balance be struck as between the Claimants’ rights to privacy on the one hand and the Defendant’s right to publish on the other?

Applying the factors set out in Von Hannover (No. 2), the balance came down in favour of finding that the Claimants’ article 8 rights outweighed the Defendant’s article 10 rights. The publication of the photographs did not contribute to a current debate of general interest. Photographs showing the faces of the children on an afternoon out with their father had not previously been published.

(3)    Did the publication amount to a breach of the Data Protection Act?

It was common ground that the Data Protection Act claim stood or fell with the privacy claim and therefore this claim was also established. 

(4)    What relief were the Claimants entitled to?

“Vindicatory damages” should not be awarded as a separate head of damages for misuse of private information, and the use of the phrase in this area was unhelpful and liable to mislead. However, an award of damages might be said in general terms to “vindicate” the Claimant. £10,000 in damages  were awarded (£5,000 for the 16 year old Claimant and £2,500 each for the 10-month old Claimants) by way of compensation. No aggravated damages were awarded.

The Claimants’ failure to find satisfactory wording for an injunction was an illustration of the difficulties in attempting to regulate future unknown matters. No injunctive relief would be granted but the Defendant should undertake to the court not to publish the photographs again.


Comment

This judgment indicates the heightened protection afforded to the privacy rights of children in accordance with the principles laid out by the Court of Appeal in Murray.

In spite of considerable cross-examination of the Claimants’ parents as to previous disclosures on social media and in interviews related to the children, the Court found that these were not comparable to the photographs that were published by the Defendants and could not prevent the Claimants’ Article 8 rights from being engaged (particularly given the primacy of importance that must be accorded to children’s interests following the Court of Appeal’s decision in K v News Group Newspapers Ltd).

Some have argued that this decision grants unfettered image rights to children. Others, however, will interpret the decision as an application of the principles already established in Von Hannover (No 2), Murray and K.

What is clear from this decision is that, as stated in the PCC Code, editors should not use a parent’s position as the sole justification for the publication of details of a child’s private life.


Download this Judgment


Instructing Solicitors

Clintons for the Claimants; RPC for the Defendant


Links

Paul Weller Wins Damages from Associated Newspapers - Clintons
Paul Weller children win privacy damages over photos on Mail Online - Guardian
Paul Weller children win damages from the Mail Online - BBC
Paul Weller wins damages from the MailOnline on behalf of his children for 'plastering' site with images of them - Independent