Murray v Express Newspapers plc – photographs of JK Rowling’s son in public street did not enfringe Art 8  EWHC 1908 (Ch)
Innocuous conduct in a public place does not give rise to a reasonable expectation of privacy under Art 8 of the European Convention on Human Rights (ECHR). Applying the House of Lords’ decision in Campbell v MGN Ltd, Art 8 is only engaged where the individual in question had a reasonable expectation of privacy.
In this case, a covert photograph was taken of the claimant, JK Rowling’s son, who was nearly two at the time, whilst he was being pushed in a buggy in a public street in Edinburgh. The photograph was published in the Sunday Express magazine. The court refused to grant an injunction restraining further publication of the photograph.
Comment: in Campbell Art 8 was engaged because model Naomi Campbell was photographed coming to, and leaving, a Narcotics Anonymous meeting. Had she been merely walking in a public street, her Art 8 right to protection for her private life would not have been engaged. However, following that decision the European Court of Human Rights (ECtHR) has given Art 8 a wider scope, upholding Princess Caroline of Monaco’s claim that the publication of photographs of her out shopping, riding and cycling violated her rights under Art 8 (Von Hannover v Germany). In Murray Patten J concluded that, even if Von Hannover conflicted with Campbell, he was bound to follow Campbell. His conclusion was also affected by the fact that the claimant and his parents were not aware of the photograph being taken and were therefore not distressed about it at the time nor was there any suggestion that the photograph revealed information which put the claimant in some kind of danger or otherwise exposed him to harm. The tension between the European interpretation of Art 8 and the approach taken by the English courts means that an appeal back up to the House of Lords – either in this case or some other – is likely to follow.