AAA v Associated Newspapers Ltd

English law recognises no general tort of invasion of privacy. Physical intrusion must be founded on an established tort, such as harassment. A child may have a reasonable expectation of privacy in information concerning paternity and in photographs, but that expectation is assessed objectively and may be reduced by the conduct of those responsible for the child.

Children’s best interests attract particular weight but do not automatically prevail over competing Article 10 rights. Publication of information about a public figure’s alleged recklessness may be justified by exceptional public interest where it materially concerns fitness for public office. Publication of a young child’s photograph requires separate justification and was unreasonable here, notwithstanding the public interest in the accompanying story.

The claimant, a child represented by a litigation friend, sued a newspaper publisher for alleged physical intrusion by journalists and photographers, misuse of private information concerning her paternity, publication of articles, and publication of her photograph. She also sought damages and injunctive relief.

The claim included an alleged siege of the claimant’s family homes and repeated publication of material concerning the claimant’s supposed father, an elected politician. The central questions were whether the defendant was responsible for the alleged intrusion, whether the claimant had a reasonable expectation of privacy, whether publication was justified under the Article 8 and Article 10 balancing exercise, and whether further publication should be restrained.

1. Physical intrusion. English law recognised no free-standing tort of invasion of privacy. The alleged physical intrusion therefore required an established cause of action, such as harassment. The evidence did not establish that the defendant or its agents conducted a sustained siege, that the freelance agency acted as the defendant’s agent, or that the defendant was responsible for targeting the claimant. That part of the claim failed.
2. Paternity information. The claimant’s paternity engaged Article 8 and would ordinarily attract a reasonable expectation of privacy sufficient to allow her mother time to decide when and how to tell her. The claimant’s best interests were accorded considerable weight, but they were not automatically paramount over all competing rights. The mother’s conversations, conduct and magazine interview demonstrated an ambivalent and inconsistent approach to confidentiality, reducing the weight attached to the claimant’s expectation of privacy.
3. The defendant’s Article 10 rights had to be balanced against the claimant’s Article 8 rights. The public interest in the supposed father’s professional and private conduct was insufficient, by itself, to justify publication of the claimant’s birth. However, the allegation that he had repeatedly acted recklessly by fathering children through extramarital affairs was relevant to his character and fitness for public office. Publication of the fact of the claimant’s birth in that context was justified. The mother’s appointment by the politician was relevant to the editorial decision but would not alone have justified publication.
4. Later articles added little or followed material published elsewhere. The information had rapidly entered the public domain, and an injunction restraining further publication of the entire story would serve no real purpose.
5. Photographs. Publication of the claimant’s photograph engaged Article 8. Even allowing for journalistic freedom, the articles contained sufficient information without the photograph. The claimed purposes of demonstrating resemblance and assisting readers to assess paternity did not amount to exceptional public interest sufficient to justify publication of a young child’s image without parental consent.
6. The defendant had published the same photograph on three occasions. Damages of £15,000 were awarded to provide an effective remedy and mark the infringement. The defendant’s undertaking concerning future publication of photographs was accepted and included in the order.

First-instance decision. No earlier decision or appeal is stated in the judgment.