Richard Stoute & Anor v News Group Newspapers Limited

Being photographed on a public beach does not automatically remove a reasonable expectation of privacy. The question is fact-sensitive. Relevant matters include the activity, place, visibility, consent, the nature and purpose of any intrusion, paparazzi targeting, its effects and the circumstances in which the photographs reached the publisher. Photographs require special consideration because they can be particularly intrusive. A demonstrative arrival in a public place may weigh against privacy, while covert targeting may weigh in favour. On an interim application, section 12(3) of the Human Rights Act 1998 requires a claimant to show a likelihood of establishing that publication should not be allowed. Where photographs have already been repeatedly published, the balance of the risk of injustice may favour refusing further restraint.

Richard and Sarah Stoute brought claims for misuse of private information against News Group Newspapers Limited concerning paparazzi photographs taken while they and their family and friends were on public beaches in Barbados. The photographs were published in The Sun on Sunday and subsequently in the Daily Mail.

After an urgent initial application, the High Court continued protection for photographs of the claimants’ house and boat but refused to restrain publication of photographs of the claimants themselves. On the return hearing, Mr Justice Johnson held that they were unlikely to establish a reasonable expectation of privacy and, in any event, that the balance of the risk of injustice favoured refusing an injunction. His decision is reported at [2023] EWHC 232 (KB). The central issues on appeal were whether the judge had treated the public location as determinative, whether he had failed to distinguish public visibility from national publication, and whether refusal of further interim relief was permissible after prior publication.

Disposition and principles

1. The appeal was dismissed unanimously. Lord Justice Arnold gave the leading judgment, with Lord Justice Males and Lord Justice Peter Jackson agreeing.
2. A misuse of private information claim involves two stages. The claimant must first show an objectively assessed reasonable expectation of privacy in the information. If that threshold is met, the court must balance the claimant’s Article 8 rights against the publisher’s Article 10 rights. Neither right has automatic precedence. The present appeal principally concerned the first stage.
3. A public place is relevant but not determinative. There is no bright-line rule that information visible to people present at the time is incapable of being private. The court must assess all the circumstances, including the claimant’s attributes, the activity, the place, the nature and purpose of the intrusion, consent, its effects and how the publisher obtained the material.
4. Photographs receive special consideration. They may be more intrusive than verbal descriptions because they allow the viewer to become a spectator and can capture personality, mood and details through covert or telephoto photography. Paparazzi targeting, the absence of consent and a family recreational activity were legitimate considerations, but none was decisive. The judge was also entitled to consider the public visibility of the activity and the demonstrative and performative nature of the claimants’ arrival by jet ski.
5. The judge’s assessment was evaluative. The Court of Appeal could interfere only for an error of law or principle, or where the conclusion fell outside the range reasonably open to him. No such error was shown. The judge had not treated public location as an automatic answer, nor had he ignored the distinction between seeing the claimants and publishing photographs nationally.
6. Section 12(3) of the Human Rights Act 1998 imposed the applicable threshold for interim relief affecting freedom of expression. Even if the claimants could establish a reasonable expectation of privacy, the judge was entitled under PJS v News Group Newspapers Ltd [2016] UKSC 26 to refuse relief where repeated publication meant that further publication would cause little additional irreparable damage.
7. The dismissal did not confer impunity in respect of all possible photographs. Other material might, if published, amount to an actionable tort.

• Court of Appeal (Civil Division): dismissed the appeal against the refusal of an interim injunction.
• High Court of Justice, King’s Bench Division, Media and Communications List: Mr Justice Johnson held that the claimants were unlikely to establish a reasonable expectation of privacy in the photographs and that the balance of the risk of injustice favoured refusing further relief: [2023] EWHC 232 (KB).