A (the publisher of the MailOnline website) appealed against the decision of Dingemans J that it had misused private information and breached the Data Protection Act 1998 (DPA) by publishing photographs of the Rs (the children of the well-known musician Paul Weller) while they were on a family day out with their father in Los Angeles, California.
A argued that the Rs had no reasonable expectation of privacy in respect of publication of the photographs given that (1) they were ‘innocuous’ photographs taken in a public street showing nothing inherently private, and (2) the judge had failed to give due weight to the fact that the taking and publishing of the photographs would have been lawful according to the law of California. A also argued that even if the Rs did have a reasonable expectation of privacy in relation to the photographs, their right to respect for their family life under Article 8 of the European Convention on Human Rights (ECHR) was outweighed in the circumstances by A’s right to freedom of expression under Article 10 ECHR. The parties agreed (both in the High Court and on appeal) that the DPA claim stood or fell with the misuse of private information claim. Finally, A argued that Dingemans J was wrong to grant an injunction in R’s favour.
The Court of Appeal, dismissing A’s appeal, held that the judge was right to conclude that the Rs had a reasonable expectation that the photographs would not be published. While the photos were of the Rs with their father in a public place, it was well established that a person can have a reasonable expectation of privacy in respect of some matters notwithstanding that they occur in public. The critical factor was that the Rs were children (and accordingly the principles laid out in cases such as Murray v Express Newspapers Plc and K v News Group Newspapers Ltd applied) and they were identified by their surname. The twin boys were less than one year old at the time of publication, and there was direct evidence about the impact on the 16-year-old girl, who had been shocked and embarrassed by the publication. The judge was entitled not to accord substantial weight to it to the California law point and on any view the fact that publication would have been lawful in California was not determinative of the reasonable expectation issue. In relation to the balancing exercise, the judge had understandably found that the balance came down in favour of the Rs’ Article 8 rights. Finally, in relation to the injunction, although the concerns identified by the judge were not compelling, he was entitled in the exercise of his discretion to conclude that their cumulative effect was sufficient to justify the granting of an injunction.