news

The appellant (M), a minor being represented by his parents, appealed against the striking out of his claim against a photographic agency for breach of his right to privacy as protected by Article 8 of the European Court of Human Rights (ECHR).

M is the son of the author of the Harry Potter literary series, J.K. Rowling. She was photographed with her son without prior knowledge or consent. Because the photographs were taken in a public setting, the trial judge struck out M’s claim, it being held that there was no reasonable expectation of privacy. The trial judge described the photographs as portraying “innocuous conduct”, which did not raise the requisite expectation of privacy.

This outcome was reached notwithstanding the decision of the European Court of Human Rights in Von Hannover v Germany [2004] EMLR 21, where the Princess of Monaco was photographed in a number of public contexts (for example whilst shopping). An actionable breach of privacy was found, it being held that Germany had failed to give adequate protection to Article 8 ECHR, which confers positive obligations on member states of the ECHR to ensure its protection.

The Van Honnover judgement went further than the prior House of Lords decision in Campbell v MGN [2004] UKHL 22, but the court in the present case had felt bound to follow the House of Lords’ dictum.

On appeal, the question was asked whether the approach taken by the trial judge had been correct. The Court of Appeal endorsed the following approach:


(1) A determination must be made as to whether there was a reasonable expectation of privacy.

(2) If the answer to (1) is ‘yes’, a balance must be made between the individual’s right to privacy and the publisher’s right to publish, as protected by Article 10 ECHR. The approach taken here is objective – would the reasonable person be offended by the publication of the material?

(3) It was at least arguable that M had a reasonable expectation of privacy, the fact that he is a child being a highly relevant consideration. Children are entitled to heightened protection from media intrusion. However, even in light of Von Hannover, there may be situations where there is no reasonable expectation of privacy. Whether such an expectation exists will depend on the individual circumstances of a case.

The Court of Appeal on this basis decided that the trial judge had been wrong to strike out M’s claim, and so his parents were entitled to take his claim to trial.