Expectations of privacy abroad

As all celebrities know, to get the High Court to stop paparazzi pictures of you from being published, the first thing you have to do is show you had a reasonable expectation of privacy.  But what if you were snapped outside of the jurisdiction and whilst English law principles suggest that you did have such an expectation, the local law where the photographs were taken says you do not?

The answer given by the Court of Appeal in Weller v Associated Newspapers [2015] EWCA Civ 1176 is that the local law is not determinative and the weight to be given to it is a matter for the judge.

Readers of Panopticon may recall a similar issue arose in Douglas v Hello [2005] EWCA Civ 595 where the Court of Appeal said that the provisions of New York law, which had entitled Michael Douglas and Catherine Zeta-Jones to arrange their wedding there in private, had no direct application since the question of whether the information was private was one of English law.  However, it had also expressed the view that the reverse was not necessarily true, saying that if New York law had permitted any member of the public to be present at a hotel wedding and to take and publish photographs of that wedding, then the photographs “would have been unlikely to have satisfied the test of privacy”.

Ten years later, the decision in Weller suggests the position is not necessarily that simple.  The case concerned a claim by the children of Paul Weller for an injunction and damages for misuse of private information and/or breach of the Data Protection Act 1998, arising out of the publication by the Mail Online of unpixellated photographs of them taken on a street and in a cafe in California.

The Court of Appeal agreed with the judge below that, applying ordinary principles of English law, the children did have a reasonable expectation of privacy and the fact (found by the judge and unchallenged on appeal) that that under Californian law there was no such expectation, did not mean the claim must fail.  The Court of Appeal said the position under local law was not determinative and the weight to give to it had been for the judge to determine: see [67-71].

On the facts it was held that there was no error by the judge in giving it the very little weight to it that he had: the connection of the two youngest children (aged 10 months) with California was slight, and certainly so when compared with their parents’ connection with England where the photographs were unlawfully published, and it had heard “very little, if any, argument” about the impact of the fact that the eldest child was living in California at the time.  Challenging matters of weight on appeal is always very difficult although this brief reasoning at [70] suggests a particular reluctance to interfere with the decision below.

There are three other points of interest in the judgment.

The first is the summary provided by the Court of Appeal at [29-30] of the case law governing children and privacy:

  • a child does not have a separate right to privacy merely by virtue of being a child;
  • the broad approach to reasonable expectation of privacy is the same for children and adults but as there are several considerations relevant to children but not to adults, a child may in a particular case have such an expectation where an adult does not;
  • in the case of children (as in the case of adults) all the circumstances of the case should be taken into account in deciding whether there is a reasonable expectation of privacy, which should include those listed in Murray v MGN [2008] EWCA Civ 446 at [36] (attributes of the claimant, nature of activity in claimant was engaged, place at which it was happening, nature and purpose of intrusion, absence of consent and whether known or inferred, effect on the claimant, and circumstances/purposes surrounding information coming into hands of publisher).

The second is that at [81-88] the Court of Appeal upheld the grant of an injunction restraining further publication of the photographs even though the judge had originally found there was no evidence that this would happen, simply on the basis that the Mail subsequently refused to give an undertaking to this effect.  This was said to satisfy the requirement that there be reason to apprehend further publication and complaints about the adverse consequences for freedom of expression were dismissed, although again the terms of the judgment suggest a real reluctance to interfere with the judge’s discretion.

The third is to note that the judgment does not record any appeal against the awards of damages (£5,000 for the eldest child and £2,500 for each of the twins).  Since the claim under the Data Protection Act 1998 was said to stand or fall with the claim for misuse of private information, it remains to be seen whether these awards are used as guidance in nascent case law concerning damages in “pure” DPA claims.

Paul Greatorex