Weller & Ors v Associated Newspapers Ltd

A child may have a reasonable expectation of privacy in photographs taken in a public place, particularly where the images reveal the child’s face and show private family activity. The assessment is objective and broad. It includes the claimant’s attributes, the activity, the place, consent, the publisher’s knowledge, the effect of publication and the circumstances in which the information was obtained.

Where privacy and freedom of expression conflict, the court must apply an intense, fact-sensitive proportionality assessment. The law of the place where photographs were taken may be relevant, but it does not determine the legality of publication in England and Wales. Damages compensate for misuse of private information; “vindicatory damages” should not be awarded as a separate head.

The three child claimants sued Associated Newspapers Ltd over an online Mail Online article published with seven unpixelated photographs taken during a family shopping and café trip in California. The claim alleged misuse of private information, breach of the Data Protection Act and entitlement to damages and injunctive relief.

The defendant argued that the photographs were taken in a public place, lawfully under Californian law, and concerned innocuous daily activity. The central issues were whether the children had a reasonable expectation of privacy, how that expectation should be balanced against freedom of expression, and the appropriate relief.

1. Liability. The claimants established misuse of private information. The associated Data Protection Act claims also succeeded because they stood or fell with the privacy claim.
2. The first question was whether there was a reasonable expectation of privacy. Applying Murray v Express Newspapers plc [2008] EWCA Civ 446, the inquiry was broad and objective. It included the claimants’ attributes, the activity, the place, absence of consent, the publisher’s knowledge, the effect on the claimants and the circumstances in which the information came into the publisher’s hands.
3. The children had a reasonable expectation of privacy. The photographs showed their faces, identified them by surname and recorded a private family outing, although it took place in public. Photographs were particularly intrusive because they created a permanent record of the children’s appearance and emotions.
4. The fact that taking and publishing the photographs would have been lawful in California did not determine the English claim. It was relevant to the assessment, but publication in England and Wales had to be judged under English law and the Convention rights accommodated by the Human Rights Act 1998.
5. The second question required an ultimate balancing exercise between articles 8 and 10. The publication did not contribute to a debate of general interest. The children’s interests, the intrusive nature of showing their faces and the absence of any sufficient public interest outweighed the general interest in a vigorous newspaper industry. The article 8 rights therefore prevailed.
6. Following R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, separate “vindicatory damages” were unavailable. The proper heads were compensatory damages and, where appropriate, aggravated damages.
7. Damages were awarded in the sums of £5,000 to Dylan and £2,500 each to John Paul and Bowie. No aggravated damages were awarded. The defendant was required to give an undertaking not to republish the photographs. No further injunction was granted.