AAA v Associated Newspapers Ltd

A child’s best interests carry considerable and ordinarily primary weight when privacy rights are balanced against freedom of expression, but they do not invariably prevail. The strength of a young child’s reasonable expectation of privacy may be reduced by the conduct of the parent responsible for the child’s private life.

Publication may be justified where private information materially contributes to a legitimate public-interest assessment of a prominent office-holder’s character and fitness for office. Appellate interference with the first-instance balancing exercise is confined to an error of principle or a conclusion outside the range reasonably open to the judge.

The claimant, a young child acting by a litigation friend, sued a newspaper publisher over articles concerning her alleged paternity and photographs of her. Nicola Davies J awarded damages for publication of the photographs but dismissed the claim concerning the paternity information. The judge found that the claimant had a reasonable expectation of privacy, although its weight had been reduced by her mother’s conduct, and that publication was justified in the public interest.

The claimant appealed against the dismissal of the information claim and the refusal of an injunction. She challenged the treatment of her best interests, the effect attributed to her mother’s disclosures and magazine interview, the balancing of rights under articles 8 and 10 of the European Convention on Human Rights, and the conclusion that further restraint would serve no useful purpose.

1. Appeal dismissed unanimously. The first-instance balancing of rights under articles 8 and 10 of the European Convention on Human Rights was analogous to an exercise of discretion. Appellate intervention required an error of principle or a conclusion that was plainly wrong or outside the range reasonably open to the judge. Nicola Davies J had carefully considered the evidence and reached an available conclusion: paras 8–9, 45 and 55–57.
2. The claimant’s paternity engaged article 8, and respect for her reasonable expectation of privacy was in her best interests. A child’s best interests receive considerable and primary weight, although they do not automatically override every competing consideration. Given the limited evidence and the way the claimant’s case had been conducted, it was sufficient that the judge recognised the expectation of privacy, found that respecting it served the claimant’s interests and attached considerable weight to those interests: paras 10–20.
3. The conduct of a parent responsible for a young child’s welfare may affect the objective strength of the child’s expectation of privacy. The judge was entitled to find that the mother’s voluntary disclosure to a person she had not previously met and her willing participation in a magazine article demonstrated ambivalence and inconsistency. Those findings justified reducing, without extinguishing, the weight of the claimant’s expectation: paras 21–37.
4. The judge was entitled to find an exceptional public interest in publication. An extramarital affair alone would not necessarily justify disclosure that a child had been conceived. Here, however, the alleged conception of a second child through extramarital relations was relevant to recklessness, character and fitness for public office. Recklessness did not depend upon proof that contraceptive precautions had been omitted: paras 38–45.
5. The refusal of a permanent injunction was upheld. Extensive online and third-party publication, the likelihood of independent publication, and the enduring public prominence of the story meant that further restraint of this defendant would serve no real purpose. The suggested prospect that the information would fade from public memory carried little weight. The dismissal was subject to the defendant’s undertaking concerning a limited detail about the circumstances of conception: paras 46–55.

• Court of Appeal (Civil Division): The claimant’s appeal was dismissed unanimously. The dismissal of the paternity-information claim and refusal of injunctive relief were upheld: [2013] EWCA Civ 554.
• High Court, Queen’s Bench Division: Nicola Davies J awarded £15,000 for repeated publication of the claimant’s photograph but dismissed the claim concerning publication of paternity information. She refused an injunction concerning that information and accepted an undertaking about future publication of photographs. No citation is stated in the judgment.