Weller & Ors v Associated Newspapers Ltd [2015]

In Weller & Ors v Associated Newspapers Ltd [2015] EWCA Civ 1176 (20 November 2015) the Mail appealed against the Queens Bench decision. On the 16th April 2014 Mr Justice Dingemans in the QBD awarded the Claimants’ children a total of £10,000 for the misuse of private information. The Claimant’s 16 year daughter was awarded £5,000.00, her twin brothers both 10 months old, the lesser sum of £2,500 each as their compensation was limited to the publication of their facial features. She was further compensated for the immediate embarrassment suffered by her.

The article appeared in The Mail Online on the 22nd October 2012 with the caption “A family day out” with photographs of the Claimant and some of his children at a café in Santa Monica, California, his daughter being referred to as the Claimant’s wife. The twins were identifiable from the photographs taken.

The claimant brought proceedings for:-
(a) Damages for misuse of private information and breach of the Data Protection Act and
(b) An Injunction.

The Mail Online removed the article because of the incorrect reference to the Claimant’s daughter. The article had 34,000 viewings of which 24,000 originated in England and Wales.

Mr Justice Dingeman’s Judgment raised the following matters:-
(a) Did the Claimant have a reasonable expectation of privacy and, if so, what was the balance as to right of privacy and the publisher’s right to publish.
(b) Was there a reasonable expectation of privacy.

Murray v Express Newspapers examined a reasonable expectation of privacy “the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher”.

The location of the taking of the photographs was also discussed. In California it is lawful to take and publish photographs. Mr Justice Dingemans held that this did not satisfy the first and second applicable tests as, in this case, the publication was in England and Wales, the children’s faces were clearly visible and not pixelated and would be decided by English law tests not Californian.

The Judge looked at two cases on Article 8 of the ECHR relating to the importance of photographs, a European case, Von Hannover v Germany and Murray v Express Newspapers which gave a different prospective of a child Claimant to that of an adult Claimant.

He said “the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child”

The Defendants with permission appealed to the Court of Appeal against:

“(i) the finding that the defendant was liable in misuse of private information and for breach of the DPA (although the argument on the latter added nothing to the argument on the former) and
(ii) the grant of the injunction.

In summary, the defendant’s case in relation to (i) is that the judge was wrong to hold that the claimants had a reasonable expectation of privacy in relation to the unpixelated images of their faces contained in the Photographs”.

The matter came before the Master of the Rolls, Lord Justice Tomlinson and Lord Justice Bean in the Court of Appeal.

The Master of the Rolls in his preliminary observations reiterated what had been said in Murray. He observed the Court had identified many relevant factors for a reasonable expectation of privacy but at the end of the day the Court had to evaluate matters and produce a judgment based on fact.

With regard to the balancing exercise he referred to the case of AAA v Associated Newspapers Ltd, “an appellate court should not intervene unless either the judge has erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach”.

He considered the Judge was correct in deciding that all three Claimants had a reasonable expectation that the photographs would not be published and, it had already been established in case law that there are some instances where a person should enjoy a reasonable expectation of privacy, even in a public place.

He considered what had occurred and observed that this had been a private family outing, a part of life protected and recognised by Strasbourg case law. The Claimants’ parents had not consented to photographs being taken or published. He considered the most important factor was that they were children, easily identifiable by their name.

The twins were, at the time of publication, less than one year old and, as such, would not have been in a position to court publicity, nor did their parents on their behalf. He considered the older child’s position to be different from the twins in that she did have a reasonable expectation of privacy concerning the photographs. There was evidence she was shocked and embarrassed by the photographs being taken which had been an intrusion into family time spent with her Father.

The Master of the Rolls observed that publication would have been lawful in California which the Judge had taken into account but had not gone into detail as to how much this had influenced him. He considered that he should not have attached much importance to that fact as the twins connection with California was minimal compared with their parent’s connection to England, where the photographs had been published which was, within that law, a misuse of private information and a breach of Article 8 of the Convention. He observed there had been little said concerning the impact on the Claimant’s daughter who was living in California at the time, where publication would have been within its laws but “was not determinative of the reasonable expectation issue”. He considered the Judge should have said more but he did not believe that was enough to interfere with his decision.

He noted “the requirement of the publication making a contribution to a debate of general interest is no longer determinative of how the balance should be struck. But it remains one of the five criteria that the court must consider”. He continued:
“The remaining four criteria are (i) how well known is the person concerned and what is the subject of the report; (ii) the prior conduct of the person concerned; (iii) the content, form and consequences of the publication and (iv) the circumstances in which the photographs were taken.

He examined all the circumstances within the criteria concluding that the appeal should be dismissed. He agreed that the Judge was correct “(i) the claimants had a reasonable expectation in the privacy of the Photographs and (ii) their article 8 rights outweighed the defendant’s article 10 right”

With regard to the injunction, he considered the Judge’s decision was an exercise of discretion. It was not whether the Court of Appeal would have exercised the discretion in the same way but whether the Judge’s decision was one that he could have reasonably made. “In my view, the judge was entitled to insist that the assurance already offered in the letter of 4 December 2012 be provided by way of an undertaking to the court” and further “This will provide all parties with certainty about what [is] and what is not permitted in circumstances where the letter dated 4 December 2012 was written at a time when liability was denied”.

He acknowledged the three concerns raised by the Judge. He considered the Judge was entitled to exercise his discretion and find overall there was enough for him to grant an injunction to stop the photographs being republished. He dismissed the appeal. Lord Justices Tomlinson and Bean agreed.

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