Last year in Weller v Associated Newspapers [2014] EWHC 1163 (QB), Paul Weller obtained £10,000 damages from Associated Newspapers (which owns the Daily Mail) in respect of seven unpixellated photographs of his children published on the Mail Online in October 2012. Associated Newspapers challenged this pay-out, suggesting it created an “image right”. In Weller & Ors v Associated Newspapers Limited [2015] EWCA Civ 1176 the Court of Appeal dismissed the appeal and refused Associated Newspapers permission to appeal to the Supreme Court.

What?

Court of first instance

Mr Justice Dingemans heard Weller v Associated Newspapers back in 2014 and applied the established two limb test of the tort of misuse of private information in regard to the Mail Online publishing the children’s pictures without their father’s consent. The first question to be addressed was whether the children had a “reasonable expectation of privacy” and the second consideration was whether the children’s right to privacy should yield to the publisher’s right to freedom of expression.

In regard to the first limb, the court considered factors such as the attributes of the children, the nature of the activity in which the children were engaged, the location of the photos, the absence of express consent and whether or not consent could be inferred, the effect of publishing the photographs on the claimant and the circumstances in which the information came into the hands of the publisher.

This limb was held to be satisfied; the children’s faces were identifiable and it was accepted by the court that a person’s image amounts to a major part of their personality and is a key attribute, the photographs showed the children relaxing and spending family time with their parents and siblings, Paul Weller had asked the photographer to desist, the photographer had told the Mail that he had “spotted” the children out with their father (implying that there was no express consent) and, importantly, the online publication made an error, referring to Weller’s 16 year old daughter as his wife, which caused her embarrassment.

With limb one satisfied, Mr Justice Dingemans moved onto to the second limb, which involved considering whether the children’s right to privacy (article 8) should yield to the publisher’s freedom of expression (article 10). A balance had to be struck, weighing up each party’s rights. The interests of a child attract higher protection in privacy laws than an adult’s and the child of a famous parent has the same right to privacy as an ordinary child.

However, the parent’s prior conduct can have an adverse impact on the child’s privacy rights - if a parent regularly uses their child’s image, for instance on social media, the child’s privacy rights are diluted. The Weller children had been exposed to the media on prior occasions, with Paul Weller’s wife displaying images of her twin boys on Twitter (but deliberately concealing their faces) and the elder daughter (Dylan) had appeared in Teen Vogue. However the fact that Paul Weller had asked the photographer to stop and had admonished a family member for posting images of his children online previously was consistent with his desire not to have his children’s faces visible.

Consequently, the judge found in favour of Paul Weller and awarded damages of £2,500 for each of his twin sons, and £5,000 for Dylan (reflecting the fact she had suffered embarrassment by being referred to as her father’s wife). Associated Newspapers appealed the decision.

Court of Appeal

The Master of the Rolls dismissed Associated Newspaper’s appeal. He affirmed the two part test applied by Mr Justice Dingemans and suggested that the appellate court would not interfere with the first court’s decision in relation to the first limb unless it lacked evidence or that the decision was one that could not reasonably be made. The second limb was considered to be analogous to the exercise of discretion. As a result, an appellate court should not intervene unless the judge of first instance (Mr Justice Dingemans) had erred in principle or reached a conclusion that was plainly wrong or completely unreasonable. The first instance Mr Justice Dingemans had made no such errors.

In relation to the first limb, it was held that Mr Justice Dingemans was right to conclude that the children had a reasonable expectation of privacy, despite the photographs occurring in a public place. Crucially, the family were visiting shops and a cafe which was a “family activity”. The “critical factor” was the fact they were children and were identifiable by their surname. The twin boys had never courted publicity but Dylan had - by virtue of her appearance in Teen Vogue. Although this had the potential to affect whether she had a reasonable expectation of privacy, it was held that just because her parents were public figures, this could not be used to argue that she deserved a lower expectation of privacy. It was not challenged that she felt embarrassed, threatened and shocked by the photographs and as such, all three children were held to have a reasonable expectation of privacy.

In regards to the second limb, the Court of Appeal cited the following as important: the publication of the photographs did not contribute to a current debate of general interest, the children performed no public functions and had no public profile (or a limited profile, in Dylan’s case), the twins, despite being tweeted about, always had their faces concealed and Dylan’s image had not been reprinted to a “measurable extent”, in addition to the her genuine embarrassment on publication of the photographs.

So what?

Associated Newspapers claimed after losing at the court of first instance that Lord Dingemans’ decision created an “image right” which is not recognised in English law. They suggested that the ruling had ”wide-ranging and serious consequences not only for local, national and international digital journalism but for anyone posting pictures of children on social networks”. Their main concern was that the children were afforded an expectation of privacy from the media in regard to their faces when, in the past, the children had had varying degrees of exposure to the media and press.

If the law were to have recognised such “image rights” then it may have further restricted a publisher’s ability to print images without the express consent of the subject. This may have fettered the press and firmly swing the balance in favour of the right to privacy over freedom of expression. “Image rights”, could therefore be seen to fundamentally change what is permissible in the publishing industry.

The Court of Appeal did not discuss the “image right” argument. Instead the Master of the Rolls’ focus was on the imbalance between the children’s “paramount” article 8 right and Associated Newspaper’s “generic” article 10 right. On the facts, the Weller children had a stronger case: it is highly unlikely that ever taking photographs in a public place of children of the rich and famous will ever trump children’s reasonable expectation of privacy. The conclusion of this appeal can be seen as an application of existing convention rights and principles laid down in established and widely accepted case law.

This ruling must also be considered in light of the fact that there are already extensive rules on child privacy included within the IPSO (Independent Press Standards Organisation) Editors Code, which already binds editors and photographers. In this case, as counsel for Weller’s children stated “the photographs were taken by the photographer ‘(a) largely illicitly, (b) without consent, (c) despite being asked to stop and where he gave an assurance that any publication would show the faces pixelated and (d) in circumstances where the claimants had been followed an harassed”. Collectively, this circumstances firmly tipped the balance in favour of the article 8 rights.

Another point considered in the appeal was the effect foreign laws play in assessing the reasonable expectation of privacy that individuals have. The photographs were taken in California (where it was lawful to publish the pictures) but displayed on the Mail Online website, which was visited by 34,000 people (24,000 of which were UK based) before they were removed. The Court of Appeal stated that Lord Dingemans was entitled not to accord too much weight to the fact the pictures were taken in California – the twins’ connection with California was slight, especially considering the Paul Weller’s strong connection with England where the photos were published and where the publication breached both a tort and an important convention right.

This case highlights the potential difficulties publishers face when they display photographs taken in one jurisdiction on websites that can be accessed internationally. In light of this, it may be necessary to limit certain jurisdictions’ access to online media. This may be both costly and difficult to implement.