On Tuesday 27 and Wednesday October 2015, the Master of the Rolls, Tomlinson and Vos LJJ will hear the appeal in the case of Weller v Associated Newspapers, which is estimate to last a day and a half.
The appeal is against a decision of Dingemans J, handed down on 16 April 2014 ( EWHC 1163 (QB)), in which he awarded Paul Weller’s three children a total of £10,000 damages for misuse of private information in respect of photographs of them taken in the street and a café in Santa Monica, Los Angeles.
There were seven photographs of the three children – two aged 10 months and one aged 16 years which were published as part of an article on MailOnline. The faces of the children were fully visible.
Dingemans J found that the claimants had a reasonable expectation of privacy
“because the photographs showed their faces, one of the chief attributes of their respective personalities, as they were on a family trip out with their father going shopping and to a café and they were identified by surname” .
He went on to hold that, balancing Articles 8 and 10, the balance came down in favour of the claimants . He applied the criteria for balancing Articles 8 and 10 laid down by the Grand Chamber of the Court of Human Rights in Von Hannover (No.2) ((2012) 55 EHRR 15  to ) . We had a case comment on the decision.
On 8 August 2014, Laws LJ granted the defendant, Associated Newspapers Limited (“ANL”) permission to appeal against Dingemans J’s conclusion that the claimants had a reasonable expectation of privacy. Permission was also granted on the issue as to whether the local law, the law of California, should have led to the conclusion that there was no reasonable expectation of privacy and the decision to grant a final injunction.
The claimants’ mother, Hannah Weller, has campaigned for a law to criminalise the publication of unpixelated photographs of children without parental consent (unless the pictures are published in the public interest).
The case raises a number of important issues, in particular
- whether a person can have a “reasonable expectation of privacy” in relation to photographs taken in public places;
- whether it makes any difference whether the taking of the photographs was lawful under the laws of the place where they were taken.
Although the point was not directly in issue, a number of commentators argued that the case had, in effect, created “image rights” for children. Hugh Tomlinson QC argued that the time had come to recognise an “image right” in English law. On this blog Judith Janna Märten suggested that the English law was moving closer to the law in Germany by protecting children in the media.
On the crucial question of whether Article 8 is engaged the Court of Appeal will consider a line of cases (some of which were mentioned by the Judge) in which the Strasbourg Court has held that the publication of a photograph without consent interferes with a person’s private life. This point has been repeated in a number of cases decided since the decision of Dingemans J (see for example De La Flor Cabrera v. Spain, Judgment of 27 May 2014,  and most recently Bremner v Turkey, Judgment of 13 October 2015 ).
It is interesting to note that the case appears to have proceeded on the basis that the position would be the same under the Data Protection Act 1998 as under the tort of misuse of private information (see  EWHC 1163 (QB) ). The contrary position seems strongly arguable – as publication of the photographs plainly involves the processing of personal data which may not be within the section 32 “journalistic exemption” (which requires reasonable belief in public interest).
The appeal is interesting and important and we look forward to reporting on it.