Mr Justice Dingemans first of all considered the relevant legal principles (paragraphs -) 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.