AAA v Associated Newspapers Ltd (CA)
Reference:  EWCA Civ 554
Court: Court of Appeal (Civil Division)
Judge: Master of the Rolls, Tomlinson LJ, Ryder LJ
Date of judgment: 20 May 2013
Summary: Privacy - injunction - expectation of privacy - public interest - best interest of child
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Desmond Browne QC (Respondent)
Alexandra Marzec (Respondent)
Instructing Solicitors: Collyer Bristow for C; RPC for D
The Claimant Appellant (C) was an infant, who brought proceedings by her litigation friend, her maternal step grandfather. She was the daughter of an unmarried professional art consultant (“the mother”), while her father was alleged to be a prominent elected politician (“the father”), and it was the information about her paternity which was claimed to be private (“the private information”). The Defendant Respondent (D) was the newspaper group.
On 16 July 2010 the Daily Mail published an article about C and her paternity, using a photograph of C being pushed by her mother in a buggy, and details of private information provided by a London press agency. D published eight further articles, all of which included the private information, and three of which included the photograph.
At trial, C was awarded £15,000 for breach of her right of privacy by repeated publication of the photograph, but no damages for publication of the private information, and no injunction. The claim in respect of the private information failed on the basis that C had a reduced expectation of privacy, and that this expectation was outweighed by the public interest in the information. The claim for an injunction was refused on the basis that it would serve no real purpose given the amount of information in the public domain.
C appealed against the dismissal of the claim for damages in respect of the private information and the refusal of an injunction.
(1) Did the J fail to make any or any proper assessment of C’s best interests as regards media attention and media publication of the private information?
(2) Was the J wrong to hold that two particular factors weakened C’s expectation of privacy in this case?
(3) Was the J wrong to hold that the reasonable expectation of privacy was outweighed by the public interest?
(4) Was the J wrong to hold that an injunction restraining publication of the private information would serve no useful purpose?
(1) The Judge was mindful of the need to pay particular regard to the best interests of C. She referred to the PCC Editors’ Code, relevant authorities, and to international instruments relating to children and the jurisprudence of the ECHR. She attached considerable weight to them, but held that her expectation of privacy was nevertheless reduced.
(2) The J was entitled to take into account any relevant conduct of the mother in evaluating the strength of C’s reasonable expectation of privacy. She was right to regard the mother’s behaviour in discussing C’s paternity with the President of a major magazine group who she had not met before as indicative of an ambivalent approach to its confidentiality. She was also right to regard the mother’s cooperation with the publication of an article in the T magazine, containing references to C’s paternity, for which she was interviewed, as being inconsistent with the aim of protecting C’s privacy.
(3) In her assessment of the public interest in publication, the J was entitled to hold that the father’s behaviour, which had resulted in the conception of children on two previous occasions, was reckless. The issue of recklessness was put clearly in correspondence by D’s solicitors, where they said it was relevant to an assessment of [his] character. The balancing of C’s Article 8 rights with D’s Article 10 rights was an exercise which was conducted correctly by the J.
(4) Once the story was out, there could be no question of it returning to obscurity. The J was entitled to hold that the fact that the information was in the public domain was sufficient reason to refuse to grant an injunction.
The upholding of the J’s findings about C’s reduced expectation of privacy in light of her mother’s behaviour, and how this was ultimately outweighed by the public interest in exposing the father’s behaviour, is of particular interest. In previous privacy and other Article 8 claims the court has focused on the paramount importance of the best interests of claimants’ children, weighing these in the balance in the context of parents’ rights. Here, by contrast, the rights of the infant C were affected by the behaviour of her parents notwithstanding the force of such interests. The fact that children’s privacy rights may be diminished in this way seems surprising, although the position might be different where a claimant was a child old enough to understand and be affected by media interest.