Murray v Big Pictures (UK) Ltd

Misuse of private information is assessed in two stages. The court first asks objectively whether the claimant had a reasonable expectation of privacy, having regard to all the circumstances. If so, it balances the claimant’s article 8 rights against the publisher’s article 10 rights. Publication need not be highly offensive before article 8 is engaged.

A child has privacy rights distinct from those of the parents. Public location does not prevent a reasonable expectation of privacy, particularly where a child is deliberately and covertly targeted for commercial publication without consent. At the strike-out stage, an arguable expectation and an arguable balance in the claimant’s favour require the claim to proceed to trial.

Murray v Big Pictures (UK) Ltd concerned photographs covertly taken of a 19-month-old child while he was with his parents on an Edinburgh street. A commercial picture agency supplied one photograph for publication despite knowing that the parents objected. The child claimed misuse of private information under article 8 of the European Convention on Human Rights and unlawful processing under the Data Protection Act 1998.

Patten J struck out the claims and entered judgment for the agency: [2007] EWHC 1908 (Ch). The appeal concerned whether the pleaded and assumed facts disclosed arguable claims that the child had a reasonable expectation of privacy, that the article 8 and article 10 balance favoured him, and that the processing of his personal data was unlawful.

1. Appeal allowed. Sir Anthony Clarke MR delivered the judgment of the court. The child had arguable claims under article 8 of the European Convention on Human Rights and the Data Protection Act 1998. All issues were directed to proceed to trial.
2. The first question in a misuse of private information claim is whether the claimant objectively had a reasonable expectation of privacy. This is a broad factual inquiry taking account of all the circumstances. Relevant matters include the claimant’s attributes, the activity and location, the nature and purpose of the intrusion, consent, the effect upon the claimant, and how and why the information reached the publisher. The requirement that publication be highly offensive is not the threshold for engaging article 8. That consideration may instead bear upon the subsequent proportionality exercise.
3. A child has a right to respect for private life distinct from the rights of the parents. The court may attribute reasonable expectations to a young child by considering how those responsible for the child’s welfare have conducted the child’s life. The child’s inability to perceive the photography and the absence of immediate distress do not determine the issue. Parents who have consistently kept their child from publicity present a materially different case from parents who have courted publicity involving the child.
4. The decisive focus is not solely upon taking a photograph in a public street. Mere photography in public may be unobjectionable, but it does not follow that the resulting image may be published widely. The alleged circumstances included deliberate and covert targeting, commercial acquisition for publication, absence of consent, knowledge that consent would be refused, and the prospect of repeated media intrusion. A routine family outing in a public place could therefore attract a reasonable expectation of privacy.
5. If article 8 is engaged, the court must balance the child’s privacy rights against the publisher’s article 10 rights. Both questions are fact-sensitive and ordinarily for the trial judge. On the assumed facts, the child had an arguable case at both stages. The reasoning in Hosking v Runting [2005] 1 NZLR 1, including its highly offensive requirement and treatment of children photographed in public, was not followed.
6. If the trial court concludes that article 8 is engaged and the balance favours the child, the agency’s processing of the photograph would be unlawful and unfair, and no condition in Schedule 2 to the Data Protection Act 1998 would be met. Questions of causation, damage and the meaning of damage in section 13(1) were also unsuitable for summary determination.

1. Court of Appeal (Civil Division): In Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, the court allowed the appeal and directed a trial of all issues.
2. High Court, Chancery Division: Patten J struck out the privacy and data-protection claims and entered judgment for the defendant: [2007] EWHC 1908 (Ch).