Richard Stoute & Anor v News Group Newspapers Limited

The Court of Appeal considered an appeal against the refusal of an interim injunction to restrain publication of photographs taken of the claimants by paparazzi on a public beach and published in national newspapers. The court applied the established two-stage test for misuse of private information: (1) whether the claimant has a reasonable expectation of privacy in respect of the information; and (2) if so, whether that right outweighs the publisher's Article 10 rights. The court emphasised the fact-sensitive nature of the first stage and the special intrusive character of photography.

The court concluded that it was not more likely than not that the claimants would establish a reasonable expectation of privacy in respect of the published photographs. Key reasons were that the photographs captured how the claimants had chosen to appear in a public place (a public beach and the approach to a restaurant), there was a demonstrative element to their arrival (use of a jet-ski), and the images showed what any member of the public present would have seen. Although the court took into account targeting by paparazzi and the use of telephoto lenses, it found these factors were not present to a degree likely to establish privacy at trial. The judge’s balancing of the risk of injustice against granting an injunction (including the fact the images had already been published widely) was held to be within the range of reasonable conclusions.

Background and parties: The claimants, Mr and Mrs Stoute, owners of a second home abutting a public beach in Barbados and associated with large profits from PPE contracts, sought an interim injunction to restrain publication of photographs taken by paparazzi of them and published by News Group Newspapers Limited in The Sun on Sunday. The application followed publication of photographs on 1 and 8 January 2023; earlier interim relief had been granted in respect of house and boat photographs but refused in respect of the claimant photographs by Heather Williams J. The High Court (Johnson J) refused to continue the injunction; the claimants appealed to the Court of Appeal with permission.

Nature of the application: An urgent application for an interim injunction pending trial of a claim for misuse of private information. The relief sought at the hearing before the Court of Appeal related only to the two photographs already published by NGN.

Issues before the court:

• Whether the appeal should be entertained in light of the prior decision of Heather Williams J.
• Whether the claimants were likely to succeed at trial in showing that the photographs amounted to information in respect of which they had a reasonable expectation of privacy (the first stage of the misuse of private information test).
• If a reasonable expectation of privacy were found likely, whether the balance of the risk of injustice favoured granting injunctive relief pending trial (the interim relief question under section 12(3) Human Rights Act 1998).

Court’s reasoning and holding: The court reiterated the established two-stage domestic test for misuse of private information and relevant Strasbourg criteria, and stressed that questions of reasonable expectation are highly fact-sensitive. It accepted that photography is especially intrusive and that covert targeting by paparazzi, use of telephoto lenses and family activity are relevant factors. However, the judge’s factual evaluation was that the claimants had been in a public place, their arrival attracted attention (arriving by jet-ski and traversing the beach to a restaurant), and the photographs reflected how they had chosen to appear in public; there was no additional element of inherently private information of sufficient degree to justify a finding of a reasonable expectation of privacy. The court found no error of law in that evaluation and upheld the judge’s conclusion that the balance of risk of injustice favoured refusing an injunction, particularly given prior widespread publication. The appeal was dismissed. The court observed that other unpublished photographs might, depending on their nature, still give rise to an actionable claim at trial.

Appeal dismissed. The Court of Appeal held that the judge did not err in law or principle in concluding that the claimants were unlikely to establish at trial that they had a reasonable expectation of privacy in respect of the published photographs. The judge's multi-factor factual evaluation — taking account of the public location, the performative elements of the claimants' arrival, the content of the images and the degree of targeting by paparazzi — fell within the range of reasonable conclusions. The judge also properly exercised his discretion in concluding that the balance of the risk of injustice favoured refusing an interim injunction given prior widespread publication.

This is an appeal to the Court of Appeal from the decision of Johnson J in the High Court, Media and Communications List: [2023] EWHC 232 (KB). Permission to appeal was granted by Warby LJ. The current judgment is reported at [2023] EWCA Civ 523.