RocknRoll and News Group Newspapers (and “The Trouble with Harry”) – Jonathan McCully

22 01 2013

Edward Rocknroll was granted an interim-injunction pending trial on 8 January 2013, which prevented the Sun from publishing a potentially embarrassing photograph of  him in its paper ([2013] EWHC 24 (Ch)). Following the hearing, Mr Rocknroll and his wife, Kate Winslet made the following statement“We have stopped the Sun from publishing semi-naked photos of Ned taken by a friend at a private 21st birthday party a few years ago. The photos are innocent but embarrassing and there is no reason to splash them across a newspaper.  We recognise that in the internet age privacy is harder and harder to maintain. But we will continue to do what we can, particularly to protect Kate’s children from the results of media intrusion. We refuse to accept that her career means our family can’t live a relatively normal life”.

The photos in question were described in the judgment as showing the claimant “partially naked, engaged in what he has described as “rather silly, schoolboy-like behaviour.””  Which calls to mind a similar image which was “splashed” across the Sun newspaper in 2012. Could the Rocknroll case  prove that the courts would have come to the aid of Prince Harry when his ‘silly’ antics, captured on camera, were about to be published?

Rocknroll Facts

As stated above, the Photographs were taken at a fancy dress party in July 2010, where the claimant was celebrating the twenty first birthday of his then Sister-in-law. These were later posted on Facebook by Mr. James Pope, who had taken the photograph.  He claims that only 1,500 of his friends could view these photographs, until a recent change in his privacy settings, which then made them available to the general public.

Following his divorce, Mr Rocknroll would find himself under much publicity in December 2012 when he got remarried to the actress Kate Winslet. However, the wedding had only garnered publicity a few days after it had occurred.

As the Sun wished to publish this photo without delay, seemingly because it only really had currency the closer it was to the wedding (at [35]), the claimant had come to the judge at short notice. In such a short space of time the judge could not make a decision on whether the claimant was more likely than not to succeed at trial ([4]). So a short injunction was granted for a period of time until the current hearing. He noted that if this injunction was not granted then the possible relief of an injunction would have been rendered useless at this initial stage at the Sun would have most likely published prior to the more adequate hearing.

Mr. Rocknroll argued at this later hearing  before Mr. Justice Briggs that the photos did not contribute to any debate of general interest, the photographs capture activity which took place at a private party on private premises and so his privacy should be respected, and disclosure would cause distress to his children ([9]). Whilst the defendant believed that by marriage the claimant became “a public figure in the social sphere,” he had also waived his rights to privacy by courting and being paid for national publicity in relation to his marriage in 2009 (which had been blessed at a party held in the same location as his Sister-in-Law’s party).They further argued that the photographs were in the public domain as they had been posted on Facebook, and photographs were taken with the claimant’s consent. As for the ‘public interest,’ a few arguments were advanced such as that the activity of the claimant was such that the public could legitimately criticise it, plus it would contribute to a debate relating to posting of naked photographs on Facebook against their terms of use. The defendants believed these arguments outweighed the speculative risk to children when the rights were balanced against freedom of speech ([10] and [34]).

Expectation of Privacy

Initially when considering whether it is likely that a claimant will succeed in showing that there has been misuse of private information, the court has to ascertain whether the Article 8 rights of the claimant are actually affected. This will mean the court will consider whether there was a reasonable expectation of privacy (See ETK v News Group Newspapers Ltd [2011] EWCA Civ 439, at paragraph 10). As to whether Mr Rocknroll had a ‘reasonable expectation of privacy’ over the photographs in question Mr. Justice Briggs made some interesting observations which should be considered in turn:

  • Location: “[T]he Photographs show the claimant in the company of his family and friends at a private party on private premises. Not least because his partial nakedness they show him behaving in a manner in which he would be entirely unlikely to behave in public.” [12] This means that just because an activity is conducted in front of a group of people, it will not necessarily mean that a person will not have an expectation of privacy over the activity. Especially if the person would not conduct themselves in such a way outside of that situation.
  • Consent: Mr. Justice Briggs could not find that consenting that a friend could take a picture is the same as consenting to publication in a national newspaper. [13]
  • Facebook: He also found it hard to find that the defendants would be able to show that when Mr Pope posted the photographs on Facebook, he would anticipate that anyone with a Facebook account would be able to view it. He was, therefore, distinguishing disclosure on Facebook from disclosure in the national press. Privacy law is not just in place to protect secrets which, once known, no longer are secret. As the court quoted from Mckennitt:

Even where material has been revealed to the public, or to a section of the public, in connection with a sensitive topic (such as bereavement), it is important to recognise that the approach of the courts towards personal information differs somewhat from that adopted in connection with commercial secrets. In the latter context, judges are ready to take a once-for-all approach, since information is either secret or it is not. In the light, especially, of remarks by Lord Keith in Att. Gen v Guardian Newspapers (No 2), at page 260, there are grounds for supposing that the protection of the law will not be withdrawn unless and until it is clear that a stage has been reached where there is no longer anything left to be protected.

  • Therefore if the paper is disclosing information to a new group of people, a further intrusion will take place as there will be added distress with such disclosure. Another aspect of this case was the un-searchability of the photograph. As it was on Mr. Pope’s profile it could not be found easily. This suggested that it was a tip-off to the paper which brought it to their attention, rather than how well circulated it was ([25]). It is clear from this case that the courts will ask itself “is there anything worth saving?” or would the relief serve no useful purpose? Here an injunction would serve the purpose of preventing nationwide disclosure of an image which many readers of the Sun had not yet seen. Even if an injunction would stop one more person seeing the image who had not seen it before, then it is arguable the court would still be serving a ‘useful purpose.’ However, when public disclosure is taken into account in the balance of Article 8 and Article 10 rights, such wide ranging disclosure might prevent the granting of an injunction. Yet, it should not affect the expectation of privacy over the information itself, as usually people will exercise some form of control over such information and this will usually involve ensuring that such information is disclosed to some people and not others. Therefore, unless someone is selling a story to a paper, people will usually have the expectation that information relating to them will remain out of the nationwide public gaze.
  • Courting Publicity in the Past: In A v B & C (at [11 (xii)]) it was said by Woolf CJ (CA) that “[w]hether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows.” Mr. Justice Briggs clarified that cases such as CraxiVon Hannover, and McKennitt had superseded this outmoded view. This meant that “[t]he question [as to] whether a person has waived his privacy rights by courting publicity about some aspect of his life calls for a fact-intensive evaluation in any case which it is asserted, rather than the application of some general principle.” [18] This suggests that newspapers should be slow to say that the public is interested in someone and so that person should have a lower expectation of privacy. It is likely the courts will find a lowered expectation only in relation to the exact information which has been publicised previously, or where the information previously publicised was hypocritical. The court maintained that to suggest that by courting publicity at a marriage one gives up every aspect of their private life to the public in relation to that marriage and activity where that marriage took place is completely unrealistic.

Mr. Justice Briggs believed that the claimant was more likely than not to succeed in showing there was a reasonable expectation in the photographs, and a description of the photographs. Once this is established, the court goes on to balance the Article 8 rights with Article 10 (with reference to  the Human Rights Act 1998 which puts particular emphasis on the ‘public interest’ in freedom of speech).

Balancing with Article 10

When balancing the courts will usually look at the value inherent in the speech, as considering this value will help in the weighing process. Mr. Justice Briggs notes that there is “a hierarchy of different types of speech”[30], in which the photograph and description in this case is placed in the lower throngs.  These lower throngs being tawdry allegations about an individual’s private life or press reports fixed on sensational and lurid news intended to titillate and entertain.

He went on to note that a judge should not put their own moral spin on cases in deciding what is morally worthy of debate and public attention. However, this does not stop the court from attempting to evaluate whether the publisher genuinely intends to inform a public debate, or rather to titillate the interest of a section of the public over intimate aspects in the lives of prominent people ([32]). He believed that the intention of the paper in this case was firmly in the latter. This was clear from the fact that they wished to publish as soon after the wedding as possible. He concluded with reference to 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  therefore found that the claimant was more likely than not to succeed in demonstrating that his Article 8 rights outweighed the Article 10 rights of the defendant.

Would Briggs Have Saved Harry?

Unfortunately this case simply highlights the fact-sensitive nature of privacy law in the UK. Whether someone has a reasonable expectation of privacy will usually call for a “fact-intensive evaluation” which will often leave the press somewhat in the dark when they are deciding, in day to day practice, whether they are able to publish certain information and photographs. There are some points which may be relevant to Prince Harry’s situation, which could help ascertain whether he would have succeeded in receiving an injunction.

In the Rocknroll case the claimant had somewhat of a public status due to his employment. However, It was noted that:

the claimant’s employment with Virgin Galactic comes nowhere to placing him in that narrow category of persons who, although engaged in no public office, may be regarded as having reduced expectations of privacy due to their important role in national affairs. They may include the chairmen of major public companies, and the captains of national sporting teams, but the claimant was, so far as the evidence goes at this stage, no more than a not very conspicuous middle manager in his uncle’s private business empire. In any event, that role ceased some two years ago” [15]

This middle-management status seemed to, therefore, affect his expectation of privacy. This suggests that if he held a public office, or was a chairman in a major public corporation it would have been different. So a member of the royal family may have a lower expectation of privacy because of their position in public office. However, to  say that this would give the press a carte-blanche to publish any embarrassing picture which comes to light seems somewhat unjustified. A lowered expectation of privacy is not equivalent no no expectation of privacy. Prince Harry in his photographs was clearly engaged in activity he would not have done in front of the general public something which was viewed as relevant by Mr. Justice Briggs. Furthermore, Briggs J. went some way to highlight the peculiarly sensitive nature of photographs when it came to protecting the private life of an individual. He stated that “Article 8 privacy rights are particularly likely to be engaged by a threat to publish photographs: see Theakston v MGN Ltd [2002] EMLR 398, per Ouseley J at paragraph 78, and Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595, at paragraphs 84-90.

Additionally, the Sun published the pictures of Prince Harry under a headline stating “Pic of Naked Harry you’ve already seen on the Internet.” They seemed to suggest that there was no further intrusion by publishing the images in a national newspaper as the images were freely available on the internet.This is a rather sweeping statement, with no clear basis in fact. Disclosure in the Sun clearly had the potential to cause further distress for Prince Harry and his family.

The images of Harry are undoubtedly lewd and entertaining. They therefore, most likely, would have been found by Mr. Justice Briggs to be at the lower levels of the hierarchy of speech. They did not add to a debate of general interest. The possible debates to which it has been suggested the photograph has contributed have been viewed as spurious at best. For example, Louise Mensch put forward the suggestion:

“There is an active reason to publish them [the photos] … There is a clear, demonstrable public interest: the royal family receives money from the civil list; Prince Harry in inviting people to his room [had] the expectation of privacy so there’s questions of judgment and questions of security.”

If one were to consider this a valid debate in the public interest, a story on the fact that the picture had been taken by people invited into Harry’s room would surely have been enough. The picture is clearly there to titillate and excite the reader rather than make them think in any way about the implications behind it.

The main difference, however, between the two cases is the fact that Kate Winslet’s children could have been affected by the photographs being published in the Rocknroll case. It was said:

there is in my view good reason to suppose that, if the Photographs or a description of their content were published in a national newspaper with the circulation of the Sun, there is real reason to think that a grave risk would arise as to Miss Winslet’s children being subjected to teasing or ridicule at school about the behaviour of their newly acquired step-father, within a short period after his arrival within their family, and that such teasing or ridicule could be seriously damaging to the caring relationship which, on the evidence, the claimant is seeking to establish with them.

This consideration of children, who are also given special protection by the PCC, is something that Prince Harry did not have to his benefit. However, despite this point Rocknroll made some very pertinent observations relating to the importance of recognising the control of private information in privacy law, the control of which is not always lost when information and images are posted on the internet. Furthermore, the court also recognised that even when the press says a story is in the ‘public interest,’ this ‘public interest’ will usually be generated by them to distract attention away from their real motives, to print salacious stories that sell.

This post originally appeared on the new Mediabelf blog and is reproduced with permission and thanks.


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28 01 2013
Law and Media Round Up – 28 January 2013 « Inforrm's Blog

[...] RocknRoll and News Group Newspapers (and “The Trouble with Harry”) – Jonathan McCully [...]

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