Wellers and ors v Associated Newspapers – Court of Appeal
Reference:  EWCA Civ 1176
Court: Court of Appeal
Date of Judgment: 20 November 2015
The Court of Appeal dismissed the newspaper’s appeal against the High Court judgment that awarded damages to musician Paul Weller’s children after their photographs were published.
Facts of the case
Weller is a well known solo artist who was formerly a member of the bands “Jam” and “Style Council”. On 21 October 2012, Associated Newspapers Limited (“ANL”) published an article entitled “A Family Day Out” on its MailOnline website. The article was accompanied by photographs of Weller and three of his children out shopping in Los Angeles. His daughter Dylan was aged 16 at the time. The two other children were the twins John Paul and Bowie aged 10 months. Weller contended that the photographs of his children should have been pixellated. He brought proceedings on behalf of his children against ANL for damages for misuse of private information, breach of the Data Protection Act and for an injunction.
High Court decision
On 16 April 2014, the High Court ruled that ANL was liable for misuse of private information and for breach of the Data Protection Act. The High Court awarded damages of £5,000 to Dylan and £2,500 to each of the twins. No injunctive relief was given but it was ruled that ANL should provide undertakings to the Court not to publish the photographs again.
In reaching the decision, the Court applied the two stage test for the misuse of private information to the facts of the case as originally established in the case of Campbell v MGN Ltd  UKHL 22.
(i) Is there a reasonable expectation of privacy?
The Court decided that the Weller children had a reasonable expectation of privacy with reference to the relevant factors in Murray v Newspapers PLC and Another  EWHC 1908 (Ch). The images were of the children’s faces, one of the chief attributes of their respective personalities. Though the Wellers were photographed in a public place they were essentially engaged in a private family activity.
(ii) How should the balance be struck between the individual’s right to privacy on the one hand and the publisher’s right to publish on the other?
The second stage of the test is a balance between an individual’s right to a private family life under article 8 of the European Convention on Human Rights (“ECHR”) and the right of the publisher to freedom of expression under article 10 of the ECHR [Murray v Newspapers PLC and Another  EWHC 1908 (Ch)]. The publication of the photographs did not contribute to a current debate and the photographs of the children’s faces had not been previously published to any measurable extent.
The Court concluded that the Weller children’s article 8 rights succeeded ANL’s article 10 rights under the ECHR and awarded damage but no injunction, merely an undertaking to be provided to the Court that the photographs would not be published again.
It is important to note that the photographs were taken lawfully under Californian law and could have been published legally in California. That the photographs were taken legally was relevant to the question of whether the children had a reasonable expectation of privacy. However, it was decided that the legality of the publication of the photographs in California was not relevant to either of the two legal tests. The question of whether the publication of the photographs was lawful should be determined by the application of the tests set out in English law. The judge did not consider that any of the obiter said in the case of Douglas v Hello! (3) suggested a different conclusion. In that case the law of New York had no direct application to the facts of the case. Though it was noted that the location of the place where the photographs were taken may be relevant to the issue of whether there is a reasonable expectation of privacy.
Court of Appeal
ANL advanced several arguments in their grounds of appeal including:
The appellant’s case on the reasonable expectation of privacy:
i. It should not be actionable to publish an innocuous photograph of a named person without the person’s consent in a public place because English law does not recognise an image right. Children enjoy no general right to privacy because of their age.
ii. The judge should have considered the law of the jurisdiction (California) of where the photographs were taken.
The appellant’s case on the balancing exercise between article 8 and article 10:
i. The article 10 rights of the defendant outweighed the article 8 rights of the claimant. No findings had been made that the claimants would likely be harmed or suffer as a result of the publication.
Reasonable expectation of privacy
The Appellant Court was satisfied that the High Court judge was correct to conclude that all three claimants had a reasonable expectation that the photographs would not be published. It is well established in both domestic and Strasbourg case law that in some situations a person can have a reasonable expectation of privacy in a public place. The activity was a private family outing. The activity can be distinguished from Naomi Campbell popping out to the shops for a bottle of milk and Sir Elton John standing outside the gate to his London home [John v Associated Newspapers Ltd  EMLR 27]. It was also relevant that the parents had not consented to the photographs. However, the most critical factor for the Appellant Court was that the claimants were children and that they were identified by their surname. The twins did not knowingly or accidently put themselves forward to be photographed. The Appellant Court acknowledged that in Dylan’s case the circumstances were slightly different as she had in the past courted publicity by appearing in Teen Vogue. However, unless the circumstances indicate otherwise, a child of a celebrity is entitled to the same expectation of privacy as a child of non-celebrity parents.
The Appellant Court also confirmed that the High Court judge was entitled to give insubstantial weight to Californian law. That the photographs could have been published lawfully in California does not prevent the claimants having a reasonable expectation to privacy in the jurisdiction of England and Wales.
Striking the balance between article 8 and article 10 of the European Convention on Human Rights
The Appellant Court considered the criteria set out in the case of Von Hannover v Germany (No 2) (2012) 55 EHRR para 109 as applied in the original judgment:
(i) Does the publication make a contribution to the public debate?
The Appellant Court confirmed that the High Court judge was entitled to find that the publication of the photographs did not contribute to the public debate – the photographs simply showed a public figure on a family outing.
(ii) How well known is the person concerned and what is the subject of the report?
The Appellant Court accepted that the twins had no public profile and Dylan had a very limited public profile.
(iii) The prior conduct of the person concerned
In the Appellant Court’s view, Weller’s interviews with the media where he had spoken about his family did not imply that his family should lose their protection from the media.
(iv) The content, form and consequences of the publication
It was accepted by the Appellant Court that Dylan was genuinely embarrassed by the photographs and that the parents were upset and concerned.
(v) The circumstances in which the photographs were taken
The photographer had been asked to stop and had assured the family that the photographs would be pixelated.
The Court’s findings
The Court of Appeal dismissed the appeal. It was also confirmed that the High Court judge was correct to hold that the claimants had a reasonable expectation in the privacy of the photographs and that their article 8 rights outweighed the defendant’s article 10 rights under the ECHR. ANL were refused permission to appeal the judgment to the Supreme Court.
The Court of Appeal went to considerable lengths to confirm that the High Court judge had exercised his discretion correctly in the original judgment. Both judgments indicate that an individual will be entitled to extended privacy rights if there is a “family” element to an activity. Currently hundreds of photographs of celebrities are published every day that may potentially contain a “family” element. Therefore it will be interesting to see how the case law develops in this area. In particular, if the Weller case is contrasted with the Murray case, it appears that children have been afforded greater protection from the paparazzi. In Murray, JK Rowling had taken more measures to limit the exposure of her children to the media compared to the facts in the Weller case. Furthermore, lawyers for ANL have previously suggested that the High Court judgment appeared to have created an "image right” that is, giving the subject legal control over the photograph. However, the Court did confirm that all the circumstances should be taken into account when deciding privacy cases.
It is also important to note that the Court of Appeal accepted that Weller’s claim under the Data Protection Act would stand or fall with the claim for the misuse of private information.
It has been rumoured that ANL may apply for permission to appeal the decision to the Supreme Court on the point that inconsiderable weight was attached to the jurisdiction of the location of where the photographs were taken (California).