18 April 2014

Image Rights

In Weller & Ors v Associated Newspapers Ltd [2014] EWHC 1163 (QB) the three children of UK celebrity Paul Weller have been awarded an aggregate £10,000 damages for misuse of private information in litigation that is likely to be seen as extending image rights under UK law. Weller had sought £45,000.

Seven unpixellated photos of the children were published by Mail Online (the online presence of the London Daily Mail) in October 2012 under the headline "A family day out: Paul Weller takes wife Hannah and his twin sons out for a spot of shopping in the hot LA sun". Those images had been made by one of the Los Angeles paparazzi.

Weller sued the Mail Online publisher in the UK on behalf of his children for misuse of private information under UK law, reflecting Article 8 of the European Charter of Human Rights.

Dingemans J noted the tension between communication about matters of general concern and public interest in privacy, asking whether communication of information about public figures in this instance outweighed the right to privacy. In the absence of a compelling public need to know about the Weller family and given the ages of the children  the Mail Online’s right to publish did not prevail
the balance comes down in favour of finding that the article 8 rights override the article 10 rights engaged. These were photographs showing the expressions on faces of children, on a family afternoon out with their father. Publishing photographs of the children’s faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California. There was no relevant debate of public interest to which the publication of the photographs contributed. The balance of the general interest of having a vigorous and flourishing newspaper industry does not outweigh the interests of the children in this case. 
Dingemans had stated-
It is common ground that the Claimants' claim is for misuse of private information. It is also common ground that the claim for infringement of the Data Protection Act will stand or fall with the claim for misuse of private information. It is also agreed that, in relation to the claim for misuse of private information, the first question to be asked is "whether there is a reasonable expectation of privacy", but there is a dispute about whether that needs to be "known or ought to be known" by the publisher.
If the answer to the first question is yes, and there is a relevant reasonable expectation of privacy, "the next question would be how the balance should be struck as between the individual's right to privacy on the one hand and the publisher's right to publish on the other. If the balance were struck in favour of the individual, publication would be an infringement of his or her article 8 rights, whereas if the balance were struck in favour of the publisher, there would be no such infringement by reason of a combination of articles 8(2) and 10 of the Convention", see Murray v Express Newspapers at paragraph 40.
In addition to the disagreement between the Claimants and Defendant about whether the reasonable expectation of privacy either needed to be known or should have been known to the publisher to be actionable, there is a dispute about the effect of the local law at the location in which the photographs were taken. There was also a disagreement about the proper approach to issues of damages for misuse of private information, and I will address that issue at the end of the judgment.
Given the areas of disagreement, it is necessary to set out something about the cause of action for misuse of private information before I consider the evidence. The House of Lords decided in Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 that there is no general tort of invasion of privacy. That remains the law, see McKennitt and others v Ash and another [2006] EWCA Civ 1714; [2008] QB 73. There is no law of "image rights". Different legal jurisdictions have taken different approaches to the law in England and Wales.
After the enactment of the Human Rights Act 1998 ("HRA 1998"), claims for misuse of private information were absorbed into the established claim for breach confidence, see A v B plc [2002] EWCA Civ 337; [2003] QB 195 at paragraph 4. In paragraph 53 of Douglas and others v Hello! Ltd and others (No.3) [2005] EWCA Civ 595; [2006] QB 125 Lord Phillips said "we cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion".
This process of absorbing claims for misuse of private information into the cause of action for breach of confidence was undertaken to prevent the Court, as a public authority, from acting in a way which was inconsistent with rights in the European Convention on Human Rights ("ECHR") incorporated into domestic law by the HRA 1998, see A v B at paragraph 4 and McKennitt v Ash at paragraph 10.
Both articles 8 and 10 of the ECHR were therefore accommodated in the new cause of action. The House of Lords in Campbell made clear that "the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence". Article 8 of the ECHR provides that "everyone has the right to respect for his private and family life, his home and his correspondence". Article 10 provides that "everyone has the right to freedom of expression". Both articles 8 and 10 are rights which can be qualified pursuant to the respective provisions of article 8(2) and article 10(2).
It might be noted that alongside this development of the law of misuse of private information, which inevitably impacts negatively on freedom of expression, the law has also shown greater latitude towards freedom of speech in matters of controversy concerning public figures, see Jameel v Wall Street Journal [2006] UKHL 44; [2007] 1 AC 359 at paragraph 38.
This claim is an action for breach of confidence, which has been renamed as a cause of action for misuse of private information, see Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 at paragraph 14. It might be noted that the issue of whether the cause of action for misuse of private information is now a separate tort, as opposed to an equitable cause of action, is an issue to be addressed by the Court of Appeal on an appeal from the judgment of Tugendhat J. in Vidal-Hall v Google Inc [2014] EWHC 13 (QB). It is common ground that I do not need to say anything further on that issue, and I do not do so.
I have not been addressed on the debate between senior Judges in England and Wales, which has become more pronounced in recent extrajudicial lectures, about the extent to which decisions of the European Court of Human Right should be followed by domestic Courts. This is because the domestic law in this area is now based on both articles 8 and 10 of the ECHR, and it is therefore necessary to look at the judgments of the European Court of Human Rights to determine the content of both articles 8 and 10.
The Court noted
Paul Weller and Hannah Weller had referred to the fact that the photographs had been published for money, and that consent had not been obtained. Paul Weller said the complaint in this action was not about privacy it was about unauthorised photographs being taken and published of his children without any attempts at pixilation of their faces. He said he considered that: his children being followed; pictures being taken despite his asking for them not to be taken; photographs being published in a national newspaper without consent and without any attempt to hide or disguise their faces; was completely wrong. He said that just because a father is well known doesn't mean that the children should be. Paul Weller said that the primary objective in bringing this claim on behalf of the children was to ensure that it never happened again.
Paul Weller was asked about the security issues that he referred to in his witness statement. In answer to the suggestion that nothing had increased the security risk to his children, he said who knows. Paul Weller asked whether any father would like pictures of his children being published regardless. He said there might be threats when the children were out with nanny, granny or aunty. He said there was an intrusion in to his family life. He said that pixilation would make it better but it would be better still if it didn't happen. He said it was impossible to prevent paparazzi photographs and that responsibility should lie on the magazine.
Paul Weller confirmed that if he had been asked for permission to publish these photographs or the photographs that he'd shown the Sun journalist he would have replied "absolutely not". He had never done any lifestyle shoots showing the children, saying that he couldn't think of anything more "naff".
He said he wasn't promoting an image of himself. His work didn't work like that and he wasn't in showbiz. He wasn't interested in nice photos only, he just wanted no photos until the children were 16 or 18 and could make up their own minds.
Associated Newspapers, publisher of the Daily Mail and Mail Online, indicated that it would appeal -
The photographs showed nothing more than Paul Weller and three of his children out and about in public places.
There was no claim and no finding that we had followed, harassed or targeted Mr Weller or his children and no request had ever been made to pixellate the children’s faces.
Our publication of the images was entirely in line with the law in California where they were taken by a freelance photographer.
The suggestion that children have an expectation of privacy in relation to publication by the media of images of their faces when one child (now nearly 18) has modelled for Teen Vogue, images of the babies’ naked bottoms have been tweeted by their mother, and their father has discussed the children in promotional interviews is a worrying development in our law, as it has conferred unfettered image rights on all the children.