Full case report
Murray v Express Newspapers plc & Another
Reference  EWHC 1908 (Ch);  EMLR 583;  3 FCR 331;  HRLR 44;  UKHRR 1322;  Fam Law 1073; (2007) 157 NLJ 1199; (2008) 1 FLR 704; The Times, 4 October 2007
Court Chancery Division
Judge Patten J
Date of Judgment 7 Aug 2007
Privacy – Confidentiality – Data Protection – Human Rights – Photographs – Paparazzi – Reasonable Expectation of Privacy -Public Place – Child
D took a photograph 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 photograph was taken covertly using a long range lens and 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 for breach of privacy / confidence 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.
Whether or not C’s claims were viable.
C’s claims for breach of privacy / confidence and under the DPA 1998 were struck out. As regards the former claim: “…on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy; and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and decision in Campbell, I am bound to follow Campbell in preference. Because I regard this case as materially indistinguishable from the facts in Hosking v Runting I am satisfied that on that test it has no realistic prospect of success.” (para. 68) The DPA claim was dismissed on grounds that C was unable to establish causation or damage of a species which s.13 allowed to be recovered.
This was the first case since the CA’s decision in McKennitt v Ash which required the Court to grapple with the tensions between the HL’s decision in Campbell and the ECtHR’s in Von Hannover. Patten J accepted that “The ECtHR clearly took a much wider view of what should be regarded as falling within the scope of an individual’s private life for purposes of Art 8” than Lord Nicholls had in Campbell (para. 45). He also rejected the idea that Von Hannover could be “isolated” as an harassment case (para. 59). However, he considered himself bound by Campbell to rule that, on the facts, Art 8 was not engaged (para. 62); alternatively, that a line could be drawn between “family and sporting activities” with regard to which Art 8 would be engaged, and “something as simple as a walk down the street” in respect of which it could not (para. 65). Patten J granted C permission to appeal.
Schillings for the Claimant; Solomon Taylor & Shaw for the Second Defendant
Harry Potter Author Loses Court Fight - Washington Post
JK Rowling fails in bid to bar press from using photo of son in buggy - The Scotsman
JK Rowling loses court battle over son pic - China Daily News
JK Rowling loses privacy battle - The Australian
Judge rules against JK Rowling in privacy case - Guardian
Rowling loses court photo fight - BBC
Rowling suit tossed by Judge - LA Daily News
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.