A new terror is stalking the survivors of Burma’s cyclone.
Sir Anthony Clarke, the Master of the Rolls, was ruling in favour of David Murray, now aged five. David had complained, through his parents, about a photograph taken of him at the age of 19 months. He was in a buggy, in the street, with his father Neil and his mother Joanne – who is better known as JK Rowling, the Harry Potter author.
The photograph was taken covertly by Big Pictures, which describes itself as the world’s biggest and best celebrity picture agency.
“The law should indeed protect children from intrusive media attention,” the Master of the Rolls said, “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.”
Keith Schilling, the claimant’s solicitor, was right to describe the judgment as “a major development of the law of privacy in this country”. But it is important to understand how far it extends.
The ruling was made at a preliminary stage of the proceedings, though it is likely to be the definitive judgment on David’s claim. It can be applied to adults, not just children. But it is not likely to prevent serious newspapers from photographing people in public places, either incidentally or because the individuals concerned are part of a legitimate news story.
It was a preliminary ruling because it was made on an application by the picture agency for the case to be struck out as not disclosing any cause of action. English courts have previously refused to recognise the right of an individual not to be photographed in a public place unless there are special circumstances – such as harassment, distress to a child or disclosure of confidential information.
Big Pictures was successful in getting the case struck out last year. Mr Justice Patten decided in the High Court that English law did not allow parents to carve out a press-free zone for their children in respect of absolutely everything they do.
“If a simple walk down the street qualifies for protection then it is difficult to see what would not,” he added. “For most people who are not public figures in the sense of being politicians or the like, there will be virtually no aspect of their life which cannot be characterised as private.” In Mr Justice Patten’s view, the case had no realistic prospect of success and should go no further.
But Richard Spearman, QC, for young David, has now persuaded three appeal judges to overturn that ruling. “We do not share the predisposition identified by the judge,” they said, “that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy”.
The Master of the Rolls, sitting with Lord Justice Laws and Lord Justice Thomas, said it was “at least arguable that David had a reasonable expectation of privacy”.
Now that the case has been reinstated, it would normally go back to the High Court for a full hearing. So far, the facts have merely been assumed – like the infamous but unverified snail in the ginger-beer bottle on which the modern law of torts was founded.
But there can be little dispute about a published photograph and, subject to any possible appeal to the House of Lords, the case is now expected to settle. In any event, a hearing in the High Court would be subject to the law as decided by the Court of Appeal.
The second point of importance in the Court of Appeal’s decision is that it is founded firmly on a ruling of the European Court of Human Rights in a case brought by Princess Caroline of Monaco. The Strasbourg court decided in 2004 that there had been a breach of her right to private and family life when she was photographed for magazines in circumstances that made no contribution to a debate of general interest. That case, of course, applies to adults.
On the other hand, it is implicit in the Strasbourg ruling and the judgment from the Court of Appeal that the media may take and publish photographs that do raise issues of general public importance. Politicians may be fair game, even when they might regard themselves as off-duty.
Speaking after the ruling on behalf of David and his parents, Mr Schilling said the case established a law of privacy for children in cases where parents wanted to protect them from intrusive photography.
“It will have a profound effect, especially on certain sections of the paparazzi,” he continued. “But I am sure that the overwhelming majority of the media will welcome it.”
This, he explained, was because the Press Complaints Commission’s code of practice says that the fame or notoriety of parents cannot be the “sole justification” for publishing details of a child’s private life.
Mr Schilling omitted the code’s important caveat, which says “there may be exceptions to [this clause] where they can be demonstrated to be in the public interest”.
Subject to this point, however, I fully support the code. I would never intrude into a person’s private life – revealing someone’s illness, for example – unless this served the public interest. I do not enjoy intrusions by newspapers into what I regard as my own private life.
But I still feel uneasy about the developing law of privacy. After all, what harm did the picture do to David Murray and his parents? It was taken from a distance and none of them was aware of it.
What matters, says the Court of Appeal, was publication of the photograph – in this case, in the Sunday Express, shortly after David turned two. And this was not like someone being snapped when they happened to pop out for a pint of milk. There was a real risk that the paparazzi camped outside JK Rowling’s home would continue to take pictures of her children unless her legal action was successful.
I am also reassured by a passage in the court’s judgment that did not find its way into Mr Schilling’s helpful press summary. After deciding that a child had a reasonable expectation that he or she would not be targeted by the paparazzi, the Court stressed that this did not give the child a “guarantee” of privacy.
“To hold that the child has a reasonable expectation of privacy is only the first step,” the judges said. “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 right to freedom of expression under article 10.”
Certainly, the Court of Appeal thought that, on the assumed facts, the Strasbourg court would decide that balance in favour of David, upholding his rights under article 8. But I am pleased to see my rights as a journalist under article 10 have not been entirely forgotten.