On 16 April 2014, Mr Justice Dingemans in the Queen’s Bench Division handed down judgment in Wellers & Ors v Associated Newspapers Limited  EWHC 1163 (QB), awarding Paul Weller’s three children a total of £10,000 damages for misuse of private information.
The claim arose in respect of an article published online on 21 October 2012 by Mail Online. The article was headed “A family day out” and showed photographs of Paul Weller and some of his children out shopping in the street and relaxing at a café in Santa Monica, Los Angeles. The first child in the photographs was Dylan Weller, then aged 16, who was misdescribed in the photographs as Hannah Weller, Paul Weller’s wife. The other children shown in the photographs were the twins John Paul and Bowie Weller, then aged 10 months, sons of Paul Weller and Hannah Weller. All three children were the claimants in the action, acting by their father and litigation friend Paul Weller.
The article was illustrated with seven photographs, some of which showed, among other matters, the fully visible faces of Dylan and the twins. The claimants contended that the pictures of the children’s faces should have been pixelated and brought proceedings for (i) damages for misuse of private information and breach of the Data Protection Act and (ii) an injunction. Mail Online denied that the publication of the unpixelated photographs was wrongful or that the claimants were entitled to any relief.
The article was taken down on 22 October 2012 because of the misdescription of Dylan as Hannah Weller. The article and photographs received some 34,000 hits, of which 24,000 were from England & Wales.
Misuse of private information claim
It was common ground that the first question to be asked was whether the claimants had a reasonable expectation of privacy. If the answer to the first question was yes, the next question would be how the balance should be struck as between the individual’s right to privacy on the one hand and the publisher’s right to publish on the other, see Murray v Express Newspapers plc  EWCA Civ 446 at  and .
Limb 1: reasonable expectation of privacy
The issue of whether there was a reasonable expectation of privacy was a broad test which took into account all the circumstances of the case. This included,
“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“, Murray v Express Newspapers at .
The parties disagreed as to whether the reasonable expectation of privacy either needed to be known or should have been known to the publisher to be actionable. Dingemans J said it was clear that the broad test at  allowed the Court to assess what the publishers knew, and what they ought to have known. It also allowed publishers to take account of matters which they did not know, and could not have known about, at the time of publication to show that there was no reasonable expectation of privacy. Although it was right to say that the law had developed since the establishment of the original cause of action for misuse of private information as one grafted on to the cause of action for breach of confidence in Campbell v MGN  UKHL 22, it did not appear that the Court of Appeal in Murray v Express Newspapers had intended to modify the legal tests which had previously been held to apply in Campbell (see Lord Nicholls at  and Baroness Hale at ).
The parties further disagreed as to the effect of the local law at the location in which the photographs were taken, i.e. Californian law. Applying the reasoning set out by Lord Phillips in Douglas v Hello! (No.3)  EWCA Civ 337, Dingemans J held that the fact that it had been lawful to take and publish the photographs in California did not determine either the first or second applicable tests. The relevant act complained of in this case was the publication in England and Wales of photographs of the children with unpixelated faces. Whether this was lawful would have to be determined by a fair application of the tests set out in English law. The tests were not determined by the law of California. To permit the foreign law to determine the issue would mean that publishers and private individuals would be dependent on foreign laws, which might mirror the laws of England and Wales, or be very strict or very lax.
The Judge then proceeded to consider both European and domestic case law on article 8 of the ECHR ( to ). He noted the particular importance attached to photographs in cases such as Douglas v Hello! (No.3) at  and Von Hannover v Germany (No.2) (2012) 55 EHRR 15 at  and to the different position of a child claimant as opposed to an adult claimant discussed in Murray v Express Newspapers
“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” .
A child’s reasonable expectation of privacy, however, could be affected by the activities of their parent, as was held to be the case in AAA v Associated Newspapers Ltd  EWCA Civ 554.
Against this, the Judge dealt with the constitutional importance of having both a free press, K v News Group Newspapers  EWCA Civ 439 at , and a thriving and vigorous newspaper industry, Hutcheson v News Group Newspapers Ltd  EWCA Civ 808 at .
Dingemans J concluded that the photographs were published in circumstances where Dylan, Bowie and John Paul had a reasonable expectation of privacy. This was because the photographs showed their faces, one of the chief attributes of their respective personalities (Reklos v Greece  EMLR 16), whilst they were on a private family trip out with their father and identified by surname. What had been said or published by various members of the Weller family in interviews or social media did not modify the reasonable expectation of privacy on the part of the children. Dingemans J accepted that the sharing by Hannah Weller of considerable information in tweets about the twins growing up or posting of pictures of the twins had been naïve in light the concerns expressed in her witness statement. However, the Judge equally accepted that she had gone to considerable efforts to avoid showing the faces of the twins or any other distinguishing features.
Furthermore, the photographs were held to be different in nature from crowd shots of the street showing unknown children. The photographs showed how Dylan, Bowie and John Paul looked, as children of Paul Weller. The absence of previous complaints from Paul and Hannah Weller in relation to coverage of the twins did not constitute any sort of consent to the publication in this action. There were relevant differences about what could be seen of the children’s faces in previously published photographs.
As for the legality of the taking and publication of such photographs in California, this did not prevent the claimants from having a reasonable expectation of privacy in relation to their publication in this jurisdiction. Dingemans J accepted that the photographs were taken in circumstances that were upsetting, in particular for Dylan. Although Mail Online did not have knowledge of the particular circumstances in which the pictures were taken, the evidence showed that it must have known from the photographs that they had been taken without consent. This was because the caption sent to Mail Online with the photographs referred to Paul Weller and his family as being “spotted”.
Limb 2: the ultimate balancing test
The Judge addressed the second test by applying the five criteria identified in Von Hannover (No.2) as relevant to the balancing exercise between articles 8 and 10. These were
“contribution to a debate of general interest … how well known is the person concerned and what is the subject of the report … prior conduct of the person concerned … content, form and consequences of the publication … circumstances in which the photos were taken“, -.
In Dingemans J’s judgment, the balance came down in favour of finding that the article 8 rights overrode the article 10 rights engaged. These were photographs showing the expressions on faces of children, on a family afternoon out with their father. Publishing photographs of the children’s faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California. There was no relevant debate of public interest to which the publication of the photographs contributed. The balance of the general interest of having a vigorous and flourishing newspaper industry did not outweigh the interests of the children in this case. Although the interpretation of the Editors’ Code was not a matter for the court, Dingemans J noted that this conclusion was consistent with the approach set out in the Editors’ Code which recognised that private activities could take place in public (clause 3), and that editors should not use a parent’s position as the sole justification for the publication of details of a child’s private life (clause 6).
Data protection claim
It was common ground that the claim for infringement of the DPA stood or fell with the claim for wrongful misuse of private information. The claims for breach of the DPA, therefore, were established.
Relief for the claimants
Reference was made by counsel for the claimants to vindicatory damages and Mosley v News Group Newspapers Limited  EWHC 177. Dingemans J agreed with counsel for the defendant that following the judgment of the Supreme Court in R (Lumba) v SoS for the Home Department  UKSC 12 at -, “vindicatory damages” as a separate head of damages should not be awarded for misuse of private information. Mindful of the need to limit compensation to the publication of the facial features of the children only and the actual immediate embarrassment suffered by Dylan as opposed to the twins, Dingemans J awarded £5,000 by way of damages for Dylan, £2,500 for John Paul and £2,500 for Bowie. It was further held that nothing in the case suggested that an award for aggravated damages would be appropriate.
Dingemans J refused to grant the injunction sought by the claimants. The grant of injunctions against the press was a matter of importance. The onus was on the claimants to identify satisfactory wording dealing with future publications and photographs. Noting the claimants’ failure to do so and the lack of evidence to suggest that Mail Online would publish the photographs again, Dingemans J ordered that ANL should provide instead an undertaking to the Court to that effect.
Dingemans J’s decision – which ANL has indicated it intends to appeal – is not surprising, nor, it is suggested, does it confer “unfettered image rights” on the Weller children as suggsted by ANL. It is in keeping with both the emphasis of the Court of Appeal on the rights of children in Murray v Express Newspapers and the notion later set out in AAA v Associated Newspapers that such rights might be affected by the behavior of their parents. In this case the actions of the respective members of the Weller family were not sufficient to lower the children’s expectation of privacy.
In any event, Dingemans J’s reasoning is to be welcomed. There is a strong argument that, in the absence of the parents publicising identifiable photographs of their children, the press should not publish unpixelated pictures of children that are unrelated to a debate of general interest for the sole reason that their parents are well known.
The judgment is also a noteworthy illustration of the difficulties that may arise from the hybrid development of the cause of action for misuse of private information from breach of confidence, its ‘parent’ cause of action. The disagreement between the parties on the importance to be given to the phrase “known or ought to be known” – an integral element of a breach of confidence claim – is an example of such a difficulty. As Dingemans J noted, the issue of whether the cause of action for misuse of private information is now a separate tort, as opposed to an equitable cause of action, is an issue to be addressed by the Court of Appeal on an appeal from the judgment of Tugendhat J in Vidal-Hall v Google Inc  EWHC 13 (QB). Such clarification would be both timely and of great interest.
Alexia Bedat is a barrister, currently working as a paralegal at 5RB.