Weller & Ors v Associated Newspapers Ltd

A child has no separate right to privacy merely because of age. Age and the way in which the child’s family life is conducted are, however, important when assessing a reasonable expectation of privacy. A child may reasonably expect freedom from targeted publication of identifiable photographs taken during a private family activity in public without parental consent.

Local law governing the taking or publication of photographs is relevant but does not determine whether their publication in England constitutes misuse of private information. If article 8 is engaged, the child’s best interests receive considerable weight but do not automatically defeat article 10. An injunction may restrain republication where there is reason to apprehend repetition, including an unexplained refusal to formalise an assurance by undertaking.

The three claimants, the children of a well-known musician, sought damages and an injunction after Mail Online published seven unpixelated photographs showing their faces during a family shopping and café trip in California. The photographs had been taken without consent. Two claimants were ten-month-old twins and the third was aged 16.

Dingemans J held in [2014] EWHC 1163 (QB) that the publication constituted misuse of private information and a breach of the Data Protection Act 1998. He awarded damages and later restrained republication.

The publisher appealed against liability and the injunction. The principal questions were whether innocuous, identifiable photographs of children taken in public could attract a reasonable expectation of privacy; what effect Californian law had on that assessment; how articles 8 and 10 should be balanced; and whether future publication was sufficiently apprehended to justify an injunction.

1. Both appeals dismissed unanimously. The trial judge was entitled to find that all three children reasonably expected that the photographs would not be published. Whether such an expectation exists is a broad, objective and fact-sensitive question. A public location does not preclude privacy where the activity forms part of private family life and personal autonomy.

2. A child has no separate privacy right merely by virtue of age. Childhood is nevertheless important when applying the ordinary test. Very young children do not choose to expose themselves to publicity, and their expectations must be assessed in light of their parents’ reasonable expectations and the manner in which family life has been conducted. Lack of parental consent, identification by surname, the risk of embarrassment, bullying or threats, and the child’s vulnerability may all carry particular weight. A famous parent does not, without more, reduce the child’s expectation of privacy.

3. The lawful status of taking and publishing the photographs under Californian law was relevant but not determinative. The judge had taken it into account and was entitled to give it little weight. The complained-of publication occurred in England and Wales and its legality fell to be determined under English law.

4. At the balancing stage, a child’s best interests are a primary consideration, but article 8 does not trump article 10 automatically. Considerable weight must be given to adverse effects on a child, and the court may assess likely harm using common sense without direct evidence. Here the photographs contributed nothing to a debate of general interest. The claimants had no, or only a limited, public profile; publication served public curiosity; consent was absent; and the circumstances of photography were upsetting and intrusive. Their article 8 rights therefore outweighed the publisher’s generic article 10 interest.

5. The appellate court would not disturb the trial judge’s evaluative findings without showing that they lacked evidential support or could not reasonably have been made. Intervention in the balancing exercise required an error of principle or a conclusion that was plainly wrong or outside the reasonable range.

6. An injunction requires reason to apprehend repetition. Although the judge’s individual concerns were not compelling, their cumulative effect and the publisher’s unexplained refusal to embody its assurance against republication in an undertaking entitled him to restrain further publication of the photographs.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 1176, unanimously dismissed the appeals against liability and the injunction.
2. High Court, Queen’s Bench Division: Dingemans J held in [2014] EWHC 1163 (QB) that the publisher was liable for misuse of private information and breach of the Data Protection Act 1998. He awarded damages. By a subsequent judgment, he restrained further publication of the photographs.