Murray v Express Newspapers Plc & Anor

A child may have a reasonable expectation of privacy based on the circumstances in which family life has been conducted, including the reasonable expectations of the parents responsible for the child’s welfare. The fact that conduct occurs in a public place, or that the child was unaware of the photography, is not conclusive. However, the law does not create a general press-free zone for routine and innocuous activities conducted in public. The issue is fact-sensitive and requires assessment of the nature of the activity, the circumstances of the photography, the impact on the child and family, and the competing Convention rights. A first-instance court must follow a binding domestic precedent where it conflicts with Strasbourg authority, while expressing its view and leaving any change to the appellate courts.

The claimant, an infant child of a well-known author, brought claims against a newspaper publisher and a photographic agency concerning the covert taking and publication of a photograph showing him with his parents in an Edinburgh street. The newspaper settled, leaving the claim against the photographic agency.

The claimant alleged breach of confidence, misuse of private information, invasion of privacy and breach of the Data Protection Act 1998. The agency applied for summary judgment or strike-out, arguing that the pleaded facts disclosed no legally recognised claim. The central questions were whether the photograph engaged article 8 rights despite having been taken in public and whether the data-protection claim had a realistic prospect of success.

1. Privacy and confidence. The claim based on breach of confidence or misuse of private information was struck out. The court accepted that the reasonable-expectation test must be applied objectively and that a child’s expectations may be assessed by reference to the way his life has been conducted by his parents and those responsible for his welfare. The child’s lack of awareness or distress is not conclusive.
2. The fact that photography occurs in a public place does not automatically prevent article 8 from being engaged. Von Hannover showed that ordinary family and personal activities may fall within private life. However, there remains an area of innocuous, routine and unremarkable public activity which carries no reasonable expectation of privacy. The present photograph depicted an ordinary family outing, with no embarrassing, intimate, medically sensitive or dangerous information. The pleaded facts therefore disclosed no realistic prospect of success.
3. Harassment may aggravate an invasion of privacy but does not determine whether a reasonable expectation of privacy exists. If there was a direct conflict between Campbell and Von Hannover, the court was bound to follow Campbell as a first-instance court, applying the approach explained in Kay v Lambeth LBC.
4. Data protection. The agency was a data controller and the photograph contained personal data. Covert photography without consent was not, by itself, unfair processing where the processing was otherwise lawful. However, failure to provide the information required by Schedule 1, Part II made the processing unfair. The legitimate-interests condition in Schedule 2 was nevertheless satisfied because the processing was proportionate to legitimate journalistic and business interests.
5. The image indicated racial or ethnic origin and therefore constituted sensitive personal data to that extent, but it did not reveal information about physical health merely because the child appeared healthy. Schedule 3, paragraph 5 was satisfied because the image had been exposed to public view through the parents’ actions.
6. Failure to register under section 19 did not create a private right to an injunction and did not disapply section 32. Compensation under section 13 required damage or distress caused by the contravention. No distress or pecuniary loss was pleaded or shown, and a restitutionary award based on the market value of the data was unavailable. The action had no reasonable or realistic prospect of success.

First-instance decision. The judgment records no earlier decision in the same proceedings requiring appellate treatment.