Murray v Big Pictures (UK) Ltd (CA)

Reference: [2008] EWCA Civ 446; [2008] 3 WLR 1360; [2008] EMLR 399; [2008] EHRR 736; [2008] 2 FLR 599; [2008] HRLR 33; [2008] UKHRR 736; The Times, 12 May 2008

Court: Court of Appeal

Judge: Sir Anthony Clarke MR, Laws & Thomas LJJ

Date of judgment: 7 May 2008

Summary: Misuse of private information - Data protection - Human rights - Photographs - Reasonable expectation of privacy - Child

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Appearances: Jonathan Barnes (Respondent)  Godwin Busuttil (Appellant) 

Instructing Solicitors: Schillings for the Appellant / Claimant; Solomon Taylor & Shaw for the Respondent / Defendant

Facts

D took a series of photographs of C, the infant son of the writer J.K. Rowling, being pushed by his father down an Edinburgh street in a buggy with his mother walking alongside. The photographs were taken covertly using a long range lens and one was later published in the Sunday Express. C (by his parents as litigation friends) issued proceedings against the publisher of the Sunday Express and D, a commercial photo agency, for misuse of private information and under the Data Protection Act 1998. The claim against Express Newspapers was settled. D applied to strike out C’s claim as disclosing no reasonable cause of action. Patten J struck out the claim and entered judgment for D, but gave C permission to appeal. C appealed.

Issue

Whether the Judge was right to strike out the claim, ie whether C’s claims for misuse of private information and under the Data Protection Act 1998 were arguable

Held

Allowing the appeal, reinstating C’s claims and directing a trial:
The “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”. Applying this test, “it is at least arguable that David had a reasonable expectation of privacy. The fact that he is a child is in our view of greater significance than the judge thought”. Since the striking out of the DPA 1998 claim was based on the erroneous conclusion that C’s article 8 rights were not arguably engaged, it should be reinstated and tried.

Comment

Perhaps the most interesting aspect of the judgment is the court’s particular emphasis on the rights of children: “It seems to us that, subject to the facts of the particular case, 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.”