Mr Justice Briggs

On 17 January 2013, Mr Justice Briggs in the Chancery Division handed down judgment in Rocknroll v NGN ([2013] EWHC 24 (Ch)) explaining his decision to grant an interim injunction to restrain the Sun from publishing photographs of the claimant which had appeared on a Facebook page.  The injunction was granted to restrain the misuse of private information and to prevent the infringement of the copyright in the photographs.

Background

The claimant, Edward Rocknroll, is the husband of the actress Kate Winslet, who he married in December 2012.  The case concerned photographs of him which had been taken at a private fancy dress party in July 2010 by another guest, Mr James Pope.  The photographs had been posted on Facebook by Mr Pope – without the claimant’s consent.  They could be viewed by Mr Pope’s 1,500 friends but not, until a recent change in privacy settings, by the general public.

In January 2013 the photographs came to the attention of the “Sun” which indicated that they wished to publish them.  It stated that it intended to pixellate the part of the photographs which showed the lower half of the claimant’s body.  On 3 January 2013, the claimant obtained an interim injunction to restrain publication of the photographs.  This injunction was continued after a hearing on 7 and 8 January 2013.  On 17 January 2013 Mr Justice Briggs gave his reasons for the decision to continue the injunction.

Judgment

The claimant argued that he had a reasonable expectation of privacy in the photographs, that their publication would not contribute to anything to any debate of general interest and their publication would cause him distress and would also cause distress to his new wife and her children. [9]

The defendant argued that the claimant was a “public figure in the social sphere” with a restricted expectation of privacy, that he had waived any right to privacy by courting publicity in connection with an earlier marriage and that the photographs were in the public domain.  As a result, the defendant argued that the balance between Article 8 and Article 10 should be resolved in its favour because the photographs revealed conduct which could be the subject of a legitimate criticism [10].

The judge held that the claimant’s Article 8 rights were plainly engaged.  The judge held that, although

“The claimant has, inevitably, briefly become something of a public figure as a result of his relationship with, and now marriage to, Miss Winslet. To some unavoidable degree this has led to published photographs of them together, but not so as to place the claimant in the public sphere in his own right“[16]

In any event, as the judge pointed out

“it is well established that public figures are entitled to the enjoyment of Article 8 rights of privacy on the same basis as anyone else: see in particular Craxi v Italy (No 2) (2004) 38 EHRR 47, at paragraph 65, the Von Hannover case, at paragraphs 73-75, and the McKennitt case at paragraphs 62-64, in which the Court of Appeal described the analysis in Von Hannover as having superseded a superficially less favourable view about the Article 8 rights of public figures in A v B plc [2003] QB 195” [17].

The judge also rejected that argument that there had been “zonal” waiver of privacy rights, concluding that

“the defendant’s reliance upon the claimant having courted publicity on the occasion of his first marriage is no more than an example of that discredited zone argument. To suggest that he thereby waived his right to privacy in respect of whatever thereafter occurred during that marriage, or at the same private premises as those upon which the marriage was originally blessed, is in my view wholly unrealistic. The position might be different if some aspect of the conduct now sought to be made public were such as to undermine the sentiments attributed to the claimant in the earlier publicity. But there is no suggestion that it did. This is not in any sense what may be classed as a hypocrisy case: compare and contrast Ferdinand v MGN Limited [2011] EWHC 2454 (QB)” [19].

The Judge then dealt with the argument based on “public domain”: that since the photographs had appeared on Facebook “they and their contents had come into the public domain so as to be beyond recall”.   He pointed out that, in relation to misuse of private information,

“the relevant equivalent to the public domain defence is that an injunction may be refused if the defendant can show that there is no longer anything by way of privacy left to be protected” [21].

After considering cases such as McKennitt v Ash and Green Corns v Claverley, the judge concluded that

“it is very unlikely that the defendant will be able to establish at trial that no useful purpose would be achieved by a restraint on publication of the Photographs or their contents, or that there is no longer anything by way of privacy left to be protected. The evidence shows that the Photographs have at least now been withdrawn from Mr Pope’s Facebook account. There is no evidence to suggest that there had by that time been widespread public inspection of Mr Pope’s photo albums on his Facebook account, in which the Photographs were to be found. No internet search of the claimant by his name would have revealed them, nor even a simple search or inspection of the wall-page or home-page of Mr Pope’s Facebook account. The probability is, on the present evidence, that the Photographs would only have been found either as the result of very expert, expensive and diligent research, or as the result of a tip-off by someone who knew about them and about their whereabouts. The defendant has, understandably, declined to reveal the method by which it became aware of the Photographs. On the present evidence, a tip-off appears to be the most likely source of its information as to their existence and whereabouts” [25].

As a result, the Judge concluded that the claimant had a substantially better than even chance of establishing a reasonable expectation of privacy at trial in relation to the Photographs and their contents [27].  He added that, on well settled authority, privacy rights were more likely to be engaged by a threat to publish photographs [28].

The Judge then went on to consider the balance between Article 8 and Article 10.  His conclusion was partly based on “objective grounds”, namely that

“nothing in the conduct of the claimant which the Photographs portray gives rise to any matter of genuine public debate, however widely drawn is the circle within which such matters may genuinely arise. As the claimant himself publicly admits, the conduct in question may fairly be described as the product of foolishness and immaturity. It is common ground that nothing unlawful occurred. Even during the period when the court sat in private so that submissions could be made about the conduct revealed by the Photographs, Mr Browne made nothing more than a purely formal attempt to suggest that the conduct involved what could sensibly be described as immorality rather than merely immature stupidity. In the words of Eady J in Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), at paragraph 30: “the only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants”.

The Judge also relied on the timing of the publication as supporting the impression that the defendant’s wish was to

“simply to satisfy the interest of its readership in the private peccadilloes of the rich and famous or (in this case) of those associated with them, rather than to contribute, as watchdogs, to public debate” [35].

He accepted that, if the photographs appeared in a national newspaper with the circulation of the “Sun” there was real reason to think that there would be a grave risk of Miss Winslet’s children being subjected to teasing or ridicule at school, seriously damaging the caring relationship which the claimant was seeking to establish with them [36].  These were matters tending towards a conclusion that the claimant’s privacy should prevail [39].

As a result, the defendant was restrained from publishing or copying the Photographs until trial or further Order and from publishing or communicating a description of their contents.

Comment

This case is an important reaffirmation of the well-established principles to be found in the leading Court of Appeal case of McKennitt v Ash ([2006] EWCA Civ 1714)(where nearly all of the media intervened). These principles which seem to have been diluted in some recent first instance decisions in the Queen’s Bench decision.

Mr Justice Briggs rightly rejected the “public domain” argument – focusing attention on the question as to the additional harm that could be caused by further publication of the private information. He also gave short shrift to the “waiver” and “public figure” arguments – rightly noting that public figures have privacy rights too.

Finally, he dismissed the “public interest arguments” founded on the dubious notion of “legitimate criticism” of lawful conduct.  As he said

“Clearly, publication of conduct may contribute to genuine public debate even though the conduct is not unlawful, but it by no means follows that the court must abdicate any attempt to assess, on the facts of a particular case, whether publication is sought genuinely to inform public debate, or rather merely to titillate the undoubted interest of a section of the public in the sexual or other private peccadillos of prominent persons”. [32]

As the judgment makes clear, the fact that a newspaper wishes to “criticise” the lawful behaviour of a prominent person cannot, of itself, provide a justification for the overriding of privacy rights.  The Judge rightly identified (and properly took into account) the true motives of the “Sun” in seeking to publish the photographs of the claimant – namely titillation of the public following his recent marriage to a well known actress.

An Inforrm post in October 2012 asked the question “Are the judges in tune with the public’s view of the public interest?” pointing out that opinion survey evidence suggested that the public took a much stricter view of what was required to justify publication of private information than many judges.  Mr Justice Briggs’ approach in this case is much closer to the mainstream views of the public than the analysis advanced by the press.

The arguments advanced by News Group newspapers in this case show that the press has still not learned the basic lessons of privacy: that private behaviour should remain private unless there is a proper public interest in publication.  This judgment is a welcome reminder of that important principle.

Mark Thomson is a partner in the media law firm Atkins Thomson and an editor of Inforrm.