Facts

JK Rowling's son was photographed by a paparazzi photographer while being pushed along the streets of Edinburgh in a buggy by his parents.  The photograph was subsequently published without the family's knowledge or consent in The Sunday Express.  The case against the Express was settled and the action for damages and an injunction against further publication proceeded only against photo agency Big Pictures (UK) Limited.

Case history

The judge at first instance struck out the claim.  In his view there was a certain area of conduct in a public place that did not raise a reasonable expectation of privacy.  

The decision

The Court of Appeal has now allowed the appeal on behalf of the child.

While stating that all depended on the particular circumstances, the Court of Appeal noted that even routine activities can attract a reasonable expectation of privacy.  Moreover, the law should in principle protect children from intrusive media attention, whether it is a child of parents who are in the public eye or not.

On the facts of the case and taking into account the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which and the purposes for which the information reached the hands of the publisher, the judge at first instance was wrong to strike out the claim. 

The case was remitted back to the court of first instance. 

Comment

While the case is another example of the difficult balance between a person’s right to privacy and a publisher's right to publish, it unfortunately does not offer much general guidance.  Currently, the only way to find out whether a photograph might be published appears to be to just publish it and wait to get sued.