Privacy Law: RocknRoll v News Group Newspapers

We write as to the recent privacy law case of Rocknroll v News Group Newspapers Ltd [2013] EWHC 24. In July 2010, the Claimant attended a private fancy dress party to celebrate the 21st birthday party of his then wife’s sister.  A series of photographs taken at the party were published on Facebook of a guest at the party, Mr James Pope. They were viewed on Mr Pope’s Facebook account and could be viewed by his 1,500 friends but were not generally available to the public.

In January 2013, News Group Newspapers Ltd learnt of the photographs.  The paper wanted to publish the photographs with a description of the contents in “The Sun” newspaper and notified the Claimant of their intention to do so, although they didn’t say the source of the photographs.  The Defendant advised Mr RocknRoll that they were proposing to pixelate any inappropriate parts of the Claimant’s body. The Claimant discovered that those had been obtained from Mr Pope’s Facebook account and as a consequence of the relaxation of privacy settings. 

The Claimant obtained an assignment of the copyright of the photographs from Mr Pope and sought to restrain publication by the Defendant on the description of his contents and relied on his copyright assignment and also his rights under Article 8 of The Human Rights Convention.

The issue was whether the Claimant should be granted an injunction:

1.            Did the Claimant have a reasonable expectation of privacy?
2.            Was the Claimant likely to succeed balancing the Claimant and his family’s Article 8 rights with the counter-availing Article 10?

The court granted the interim injunction pending the trial of the action.

The court found:

1.         The Claimant’s article 8 rights were plainly engaged by the Defendant’s threat both to publish the photographs and to publish the description of its content.  The photograph showed him in the company of family and friends at a private event.  He was partying naked and behaving in manner which he wouldn’t behave in public.

2.         No account should be taken of the fact that the photographs were taken with his consent.  The Claimant had no idea that Mr Pope would post the photographs on his Facebook account or make them any more available or any more widely than to mutual friends.

The judge found that it was highly unlikely that the Defendant would establish that by consenting to the taking of the photographs, he intended to consent to the publication in a national newspaper.

3.         There is nothing the court found in fact or law in News Group Newspapers’ submission that the Claimant had deprived himself of what would be a reasonable expectation of privacy by being a public figure or by contributing for reward for publicity about his first marriage. The Defendant’s counsel relied on the fact that Mr RocknRoll was Head of Marketing,Promotion and Astronaut Experience at Virgin Galactic and that he had cooperated in publicity given by Hello magazine to his first marriage and had some financial reward.  The court didn’t accept that he had courted publicity. The court stated that the law is well established that public figures are entitled to the enjoyment of Article 8 rights of privacy on the same basis as anybody else.  Whether that person has waived his right to privacy would call for a factual examination in every case. The Court of Appeal has previously disproved that once a person had courted publicity with regard to matters in his life then he would permanently waive privacy in relation to that aspect of this life thereafter.

The photographs had not come into the public domain through their postings on Facebook.  It was not the case that there was nothing by way of privacy left to be protected by an injunction. The photographs were not easily accessible.  A search on the Internet would not have found them.

The court looked at the balancing exercise and thought that the Claimant was likely to succeed:

A.        The photographs were not a matter of public interest. Nothing illegal or immoral was depicted in them, or was there any hypocrisy argument.

B.        The timing and threat of the publication was threatened when the press became aware of Ms Winslet’s marriage.

C.        The court thought there was a real risk that the publication of the photographs would result in the teasing or ridicule of Kate Winslet’s children at school and it would damage the family’s relationship, which the Claimant was seeking to establish with them.

D.        The Claimant was not a person with a substantial public profile. 

This privacy law case is interesting as it shows that just because the material can be accessed via a social network site, as in this case the photographs were available to 1,500 people, it didn’t necessarily mean that it was in the public domain and could be published.

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