Pushchair privacy appeal succeeds

CA reinstates photograph claim and says it must proceed to trial

The Court of Appeal today handed down its eagerly awaited judgment in the privacy claim involving photographs of J. K. Rowling’s son. The Court allowed the Claimant’s appeal, overturning the August 2007 decision to strike the claim out, finding him to have an arguable case on both the misuse of private information and the Data Protection Act points and that his parents should therefore be permitted to take his claim to trial on his behalf.


The claim, which alleges misuse of private information and breach of the DPA 1998, centres on a series of photographs of David, which were taken when he was a 1 year-old, being pushed down a street in Edinburgh by his parents in his pushchair at a time when his mother was pregnant with David’s younger sister.


In August 2007 Mr Justice Patten acceded to an application by the remaining Defendant – Big Pictures (UK) Ltd, a photographic agency – to strike out the claim. However, the Court of Appeal today decided that the Judge had been wrong to conclude that the claim was unarguable and reinstated the claim, directing that the issues between the parties be tried.


Having subjected the leading authorities of Campbell v MGN Ltd and McKennitt v Ash to close scrutiny, the Court observed that: “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”.


5RB‘s Godwin Busuttil (instructed by Schillings) is junior counsel for the Claimant, David Murray, while Big Pictures are represented by 5RB‘s Mark Warby QC and Jonathan Barnes (instructed by Solomon Taylor & Shaw).


Click here for the 5RB case report and full judgment.