John v Associated Newspapers Ltd
Reference:  EWHC 1611 (QB);  EMLR 772
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 23 Jun 2006
Summary: Privacy - Article 8, ECHR - Breach of confidence - Injunction - Photographs - Photograph of Claimant in public street
Desmond Browne QC - Leading Counsel (Claimant)
Instructing Solicitors: Carter-Ruck for the Claimant; Reynolds Porter Chamberlain for the Defendant
A freelance photographer took pictures of Sir Elton John walking from his Rolls Royce to the front gate of his West London home, casually dressed. The D proposed to publish one of the pictures. Sir Elton, forewarned, applied for an injunction to restrain publication as an unwarranted infringement of his privacy. He argued that he had not consented to the taking of the pictures, which were surreptitiously acquired and made no contribution to any debate on a matter of public interest. Their publication would, he alleged, be a clear breach of the PCC Code. He relied on the decision of the European Court of Human Rights in <A
href=”http://localhost/5rb/casereports/detail.asp?case=267″ target=_parent>von Hannover.
Was the threshold for the grant of an interim injunction satisfied and in particular (1) Did Sir Elton have a reasonable expectation of privacy in respect of the information in the photographs? (2) If so, did his right to respect for his privacy outweigh the right to freedom of expression?
Dismissing the application:- (1) The threshold requirement was proof that an injunction was more likely than not to be granted at a trial. This case was not within the exceptional classes mentioned in Cream Holdings. (2) The threshold was not crossed: Sir Elton had no reasonable expectation of privacy and any rights he did have would not outweigh freedom of expression: (a) The photo was not like those at issue in Campbell but akin to Sir Elton ‘popping out for some milk’; (b) an important element in von Hannover was harassment, but the Defendants denied any such conduct and there was no reason to suppose their evidence was untruthful; (c) the case did not involve any of the recognised categories of private information, such as health, or sexual life; there was nothing remotely comparable to Peck; (d) the likelihood the photo would be accompanied by offensive text did not give rise to a cause of action; (e) lack of consent was merely a factor to weigh.
There is an apparent conflict between Campbell and the later decision of von Hannover as to what qualifies for protection under Article 8. If Campbell is applied as setting a threshold of “expectation of privacy” to deny protection for aspects of a person’s private life which are considered too insubstantial to warrant protection, then this has the potential to introduce an imbalance in approach because no such “threshold” criterion is applied to article 10 rights. Such an approach would appear to conflict with the clear statements that neither right has presumptive priority – see In re S (§17).