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• Celebrity offspring's right to privacy

Introduction

The right to privacy came before the Court of Appeal in the recent case of David Murray -v - Big Pictures (UK) Limited. The Court had the opportunity in the case to consider the tensions between Article 10 of the European Convention on Human Rights (the "Convention") which provides for freedom of expression and Article 8 which provides for respect for private and family life, home and correspondence.

The facts of the case are simple; David Murray is the son of Harry Potter author, JK Rowling. He was photographed covertly (without his parents' knowledge or consent) using a long lens camera when he was being pushed in a buggy by his parents in a public street in Edinburgh. The photograph showed David's face in profile, his clothes, his size, the style and colour of his hair and the colour of his skin. The photograph was subsequently published in the Sunday Express Magazine.

Key Questions

Rowling took the case to court with her husband on behalf of David. The argument ran that David had not sought publicity and that the photograph of him should not have been published in the Sunday Express. The Express settled with Rowling out of court but the agency Big Pictures contested the case (probably because the agency had more to lose if it could no longer sell photographs of this nature to the press).

The High Court threw the case out before trial on the basis that David did not have a reasonable expectation of privacy in the circumstances in which the photograph was taken. The photograph was taken in a public place and portrayed innocuous conduct that did not raise a reasonable expectation of privacy. The High Court declared that it was bound to follow the principles and decision set out in Campbell –v- Mirror Group Newspapers[1] in preference over the Von Hannover –v- Germany[2] case which advocated a wider interpretation of privacy rights.

The High Court gave leave to appeal on the grounds that the case raised important questions about the scope of privacy rights.

Comments on the case

The Court of Appeal allowed the appeal holding that it was at least arguable that David had a reasonable expectation of privacy and struck the balance between articles 8 and 10 of the Convention in David's favour. The court reinstated the claim and directed there should be a trial of all the issues between the parties.

This case has raised the possibility that Article 8 of the Convention may be engaged even where the individual concerned is engaged in mundane activities such as a family walking down the street or going shopping. The press will also need to be more careful in future when they decide whether or not to publish photographs of children.

That being said, the application of this particular case is extremely narrow. Essentially, it concerns the rights to privacy of celebrity offspring in innocuous settings and the judge confirmed in the ruling that this case does not give image rights to celebrities. It is also not clear whether the court would deal in the same way with children who have not been sheltered from publicity in the same way as David Murray.

The case raises a number of interesting public interest issues. Effectively it is judges who are determining the scope and extent of privacy laws and not Parliament. This means that the boundaries of privacy rights are uncertain and it is extremely difficult to advise clients on either side of the coin (publishers as well as individuals) as to their rights and obligations.

Further, it is very difficult to tell where the judges will draw the line and this is entirely unsatisfactory. We still do not know whether individuals in the public eye are entitled to privacy rights in circumstances where they are not attending a formal function and are simply going about their daily lives without courting the press. This lack of clarity means that adults in the public eye do not have the certainty that they know they can stop the press from publishing their image in tabloid press and gossip magazines.

Put simply, the courts are having to develop privacy rights on a case-by-case piecemeal manner. No doubt that this is because Parliament does not want to legislate in an area were there is no common agreement amongst the public about what is private and what is not. The recent Max Mosley incident illustrates this clearly.

[1] [2004] UKHL 22, [2004] 2 AC 457