'The law should indeed protect children from intrusive media attention.'




So said the Court of Appeal - made up of Master of the Rolls Sir Anthony Clarke and Lords Justice Laws and Thomas - reinstating the privacy claim brought by author JK Rowling on behalf of her toddler son, David.



Last year the case was struck out by Mr Justice Patten, who was unable to find that the toddler, being pushed down an Edinburgh high street in his pushchair by his parents, had a reasonable expectation of privacy (see [2007] Gazette, 8 November, 29). But the hopes of JK Rowling (using her married name, Mrs Murray, to bring the action on behalf of her child) for a normal life for her children, away from the prying eyes of the media, have been given a boost by the Court of Appeal who held that the claim should not have been struck out and that the matter should go to a full hearing because it was 'at least arguable' that the son had a reasonable expectation of privacy.





The principles of privacy

The Court of Appeal first looked at the principles under which privacy claims are assessed, referring to the two most recent cases, the domestic decision of the House of Lords in Campbell v MGN (see [2004] Gazette, 21 May, 32) and the European Court of Human Rights case of von Hannover v Germany (see [2004] Gazette, 15 July, 32). While it did not specifically find any contradiction between the two, it made it clear that in any such circumstances the court would be obliged to follow the principles set out in the domestic decision.



These principles include the notion that the 'touchstone' of private life is 'whether in respect of the disclosed facts the reason in question had a reasonable expectation of privacy'. Having established that the claimant gets over this threshold the court should then look at all the circumstances of the case, undertaking a balancing exercise to decide whether article 8 of the European Convention on Human Rights should yield to the article 10 right, or vice versa. These are essentially questions of fact to be decided by the trial judge.



According to the Court of Appeal: 'The question 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.' Importantly, it went on to add that, 'in the case of a child the position is somewhat different from that of an adult'.



So, first, any trial judge would have to consider 'whether David had a reasonable expectation of privacy in the sense that a reasonable person in his position would feel that the photograph should not be published'. In other words they would consider whether 'David had a reasonable expectation that commercial picture agencies like BPL would not set out to photograph him with a view to selling those photographs for money without his consent, which would of course have to be given through his parents'. Once he had got over that threshold, 'the next question would be how the balance should be struck as between the individual's right to privacy on the one hand and the publisher's right to publish on the other'.





Reasonable expectation

Patten J had reached the conclusion, on assessing von Hannover and Campbell, that 'there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy'. The facts in this case, he decided, fell into this category. 'If a simple walk down the street qualifies for protection then it is difficult to see what would not,' he said. He went on to explain that his starting point was 'a strong predisposition that routine acts such as the visit to the shop or the ride on the bus should not attract any reasonable expectation of privacy'. Consequently, David did not have a reasonable expectation of privacy with regard to the activities photographed, the case had 'no realistic prospect of success' and he struck it out.



But the Court of Appeal disagreed. 'The fact that [David] is a child is in our view of greater significance than the judge thought,' it said. The Press Complaints Commission's code of conduct requires that 'editors must not use the fame, notoriety or position of the parent or guardian as sole justification for publishing details of a child's private life'. And out of this the court drew the general principle that: 'If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent'.



So one could simply not state categorically that a trip to the shops was anodyne and incapable of protection - everything depended on the circumstances. And if one of those circumstances was that the subject was a child, this could make a substantial difference. 'The position of an adult may be very different from that of a child' the Court of Appeal confirmed, while at pains to make clear that that this did not provide any guarantee of privacy for the child, just that it was a significant factor. 'To hold that the child has a reasonable expectation of privacy is only the first step. Then comes the balance which must be struck between the child's rights to respect for his or her private life under article 8 and the publisher's rights to freedom of expression under article 10.'





Invisibility cloak

Wealthy celebrities and popular public figures enjoy many benefits in life, and the quid pro quo can be to succumb to the camera from time to time. But while their children may equally benefit from their parents' celebrity status, their children should not have to be subjected to any such downsides and should be treated as any other child. 'If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent,' said the Master of the Rolls.



The Court of Appeal made it clear that this action was not brought to protect the privacy of the parents. However, it must surely be a possibility that some celebrities will try to use this decision as yet another weapon in the celebrity's armoury against unwanted media attention. While oversized sunglasses and baseball caps used to be the chosen accessories behind which to hide from the glare of the camera, perhaps now we will see celebrities spending more time with their children as a substitute for the invisibility cloak that so far is only the preserve of lucky lads such as Harry Potter.