Neutral Citation Number: [2008] EWCA Civ 446

Case No: A3/2007/2236

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
THE HON. MR JUSTICE PATTEN
[2007] EWHC 1908 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/05/2008
Before :

SIR ANTHONY CLARKE MR

LORD JUSTICE LAWS
and
LORD JUSTICE THOMAS
---------------------
Between :

DAVID MURRAY (by his litigation friends NEIL MURRAY Appellant/

and JOANNE MURRAY) Claimant
- and -
BIG PICTURES (UK) LIMITED Respondent
/Defendant
---------------------
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
---------------------
Mr Richard Spearman QC and Mr Godwin Busuttil (instructed by Messrs Schillings) for the
Appellant
Mr Mark Warby QC and Mr Jonathan Barnes (instructed by Messrs Solomon Taylor &
Shaw) for the Respondent

Hearing dates: 10 and 11 March 2008

---------------------
Judgment
Sir Anthony Clarke MR :

This is the judgment of the court.

Introduction

1. Dr Neil Murray and Mrs Joanne Murray are the parents of David Murray. Mrs
Murray is the author of the Harry Potter books which, as everyone knows, she wrote
under the name JK Rowling. David was born on 23 March 2003. On Monday 8
November 2004 Dr and Mrs Murray were out walking in an Edinburgh street some
time after 9 oclock in the morning. Dr Murray was pushing a buggy with David in it.
The respondent (BPL) took a colour photograph of the family group which was
subsequently published in the Sunday Express magazine on 3 April 2005 (the
Photograph).

2. On 24 June 2005 proceedings were issued in Davids name through his parents as
his litigation friends against the publishers of the Photograph, Express Newspapers
Plc as first defendant and against BPL as second defendant. The action against the
first defendant was settled leaving BPL as the sole defendant. In the action David
asserts an infringement of his right to respect for his privacy contrary to article 8 of
the European Convention on Human Rights (the Convention). He also puts his
claim under the Data Protection Act 1998 (the DPA).

3. BPL applied for an order striking out the claim under CPR 3.4 or for summary
judgment under CPR 24. The application was heard by Patten J (the judge) on 20,
21 and 22 June 2007. By an order dated 7 August 2007 the judge struck out the claim
and gave judgment for BPL. In reaching his conclusion he assumed that the facts
alleged in the particulars of claim were true. This appeal is brought with the
permission of the judge, who gave permission on the ground that the case raises an
important point about the relationship between the decision of the House of Lords in
Campbell v MGN [2004] UKHL 22, [2004] 2 AC 457 and that of the ECtHR in Von
Hannover v Germany (2005) 40 EHRR 1.

The facts

4. We can for the most part take the facts from the judgment. However, on 4
December 2007, which was of course after the order of the judge but before the
hearing of the appeal, BPL disclosed a CD ROM on which were stored copies of
digital versions of the Photograph and five further photographs of David and his
parents taken on the same day. As a result of that disclosure the appellant has
produced draft amended particulars of claim and it has been agreed that we should
consider the appeal on the footing that the facts alleged in that draft are true. It was
also agreed that the court could take account of the contents of a witness statement by
Dr Murray in which he described the events of the morning of 8 November.

5. Davids parents have a daughter, Mackenzie, who was born on 23 January 2005
and with whom Mrs Murray was pregnant at the time the photographs, including the
Photograph, were taken. Mrs Murray also has another daughter, Jessica, by a
previous marriage, who was born on 27 July 1993. When the Photograph was taken
the Murrays were walking from their flat to a local caf. They were accompanied by
a security officer, Ms de Kock. Shortly after they arrived at the caf Ms de Kock
noticed that they were being observed by a man in a car parked opposite. As they left
the caf some time later, Ms de Kock saw the man take a long lens camera from the
boot of the car and apparently take some photographs. It is inferred on behalf of the
appellant that the camera was used to take photographs of the family. Of the six
photographs, the first two, which include the Photograph, were taken while they were
on their way to the caf, whereas the remaining four show them crossing the road and
returning to the flat.

6. The Photograph shows Mrs Murray walking alongside the buggy and shows
Davids face in profile, the clothes he was wearing, his size, the style and colour of his
hair and the colour of his skin. It was taken covertly by a photographer using a long
range lens. Neither David, who was about 19 months old, nor his parents were aware
that the photograph was being taken. His parents were not asked for their consent to
any of the photographs being taken.

7. On 12 January 2005 the Daily Record and the Western Daily Press published
copies of photographs which formed part of a series taken by BPL on 8 November
2004. As we understand it, the Western Daily Press published a copy of the
Photograph. In any event the familys solicitors (Schillings) wrote to BPL on 17
January complaining about the photographs, which they understood to be the property
of BPL, in so far as they depicted David and asked for an undertaking not to publish
or permit the publication of such photographs in the future. On 21 and 25 January
BPL wrote offering certain undertakings. On 26 January Schillings wrote
complaining that one of the photographers camped outside our clients home was
from BPL. On the same day BPL replied denying the allegation but asserting that a
named news agency, a named freelance photographer and two named newspapers did
have photographers outside the house. On 27 January Schillings wrote with regard to
the undertakings referred to in the communication of 21 January. They in effect
accepted the undertakings but sought an undertaking from BPL to write a letter to
certain newspapers and magazine companies. They also sought costs. On 1 March
Schillings wrote again asking to see copies of the letter and asking for a response on
costs. On 4 March BPL wrote saying that they were willing to write the letter but that
they were not willing to pay costs.

8. That was how matters were left when, on 3 April, the Photograph appeared in the
Sunday Express accompanied by the headline My Secret and the text of a quotation
attributed to Mrs Murray in which she set out some thoughts on her approach to
motherhood and family life. As the judge put it, the accuracy of the quotation was not
disputed but the pleaded case was that it related to Jessica, was made several years
earlier and was not provided for publication in that edition of the Sunday Express or
in conjunction with the Photograph. It is plain that, as at the date of the publication,
BPL was aware that the Murrays had not given consent to the publication of the
Photograph. Moreover, although the judge does not expressly so conclude, it is at
least arguable (and we would have thought plain) that it was made clear in the
correspondence, in so far as the letters were written on behalf of David, that the
Murrays positively objected to the publication of any photographs of David.

9. On 11 April Schillings wrote to BPL on behalf of the Murrays, including David,

referring to the earlier correspondence and setting out what they said were the
undertakings given by BPL as follows:
 1. We undertake not to further publish, license or sell the
images in question; (letter dated 21 January 2005).

2. We cannot undertake to return the images to you. We

can however undertake to delete the images from our
database and our website; (letter dated 25 January 2005).

3. We are willing to contact all publishing companies to

inform them that the pictures in question are no longer
available for publication; (21 January 2005); and then
We are more than happy to carry out our undertakings with
regards to informing our clients that those pictures are no
longer available for publication; (letter 4 March 2005).

Schillings added that BPL was in breach of some at least of the undertakings and
sought further performance of them, an apology and costs.

10. BPL replied on 13 April saying that it had no intention of further publishing,
licensing or selling the images of JK Rowling in question. It added that it had
contacted its clients who might have the pictures in their own library and instructed
them not to publish them and that the pictures remained unavailable on their website.
It further said that it was unfortunate that pictures of JK Rowling were published in
the Sunday Express magazine on 3 April but BPL was doing what it could to see that
that did not re-occur. Finally it offered an apology and a contribution of 400 towards
costs, given its understanding that payments had been received from the publications
that ran the pictures.

11. On 23 June Schillings sent a letter before action on behalf of Davids parents as
his litigation friends, saying among other things that they would be seeking delivery
up of all the offending photographs and not merely those published and that the action
would be brought in the interests of preventing future taking and publication of
photographs of our client. In our view that letter made it clear that the action was to
be brought solely by David. So it was that this action was commenced on 24 June on
Davids behalf.

The action

12. It is in our opinion of some importance that the action was brought by Davids
parents only on behalf of David and not on their own behalf. Mr Spearman submits
that that fact was not sufficiently recognised by the judge, whom he submits treated
the action as if it was brought for the benefit of both the parents and the child. We
accept that submission. It does seem to us that there are parts of the judges judgment
in which he treated the action as if it were brought at least in part to protect Mrs
Murray because of her fame as JK Rowling.

13. For example at [6] he said:

I think it is fair to say that the action is seen by the

Claimant's parents as something of a test case designed to
establish the right of persons in the public eye (such as the
Claimant's mother) to protection from intrusion into parts of
 their private or family life even when they consist of activities
conducted in a public place.

We do not think that that is correct. The evidence supports the conclusion that
Davids mother has not sought to protect herself from the press, no doubt on the basis
that she recognises that because of her fame the media are likely to be interested in
her. It is also of note that the claim is brought on the ground that David is entitled to
respect for his private life under article 8 of the Convention, not on the basis that all
the members of the family including the parents are entitled to respect for their family
life.

14. At [7] the judge described the issue in this way:

The issue for the Court in these proceedings and most of the
argument on this application is centred on the degree of
protection which someone who is well known or of public
interest is entitled to in respect of their private family life. The
reality of the case is that the Claimant's parents seek through
their son to establish a right to personal privacy for themselves
and their children when engaged in ordinary family activities
wherever conducted.

Again we do not think that that is quite correct. We do not think that the reality is that
the parents seek through their son to establish a right to personal privacy for
themselves and their children when engaged in ordinary family activities. The
positions of parents on the one hand and children on the other hand are distinct. We
will return to the relevant test in a moment but it seems to us that David may have a
reasonable expectation of privacy in circumstances in which his famous mother might
not. In our judgment the question in the action is whether there was an infringement
of Davids rights under article 8, not whether there was an infringement of the
parents rights under it.

15. We stress that we are not suggesting that the judge disregarded the fact that it was
David who was the claimant or that he treated the claim as that of the parents. He was
for example, correct to say at the end of [16] that the purpose of the claim is to carve
out for the child some private space in relation to his public appearances. On the
other hand, he said that in the context of his description at [13-17 and 23]:

13. I have already set out the basic facts as pleaded, but there
are a number of additional matters set out in the
Particulars of Claim which have to be brought into
account as part of the assumed basis for the claim. They
can be summarised as follows:

i) The Claimant's mother has achieved enormous

success and wealth from the hugely popular series
of Harry Potter books together with the films of
those novels and associated merchandising;

ii) The Claimant's mother accepts that as a result of this

there will be curiosity and even a measure of
 legitimate interest on the part of the media and the
general public in her activities and her appearance;

iii) In contrast to (ii) above the Claimant's parents since

his birth have never sought to place the Claimant's
family as a unit or his siblings as individuals in the
public eye but have repeatedly and consistently
taken steps to secure and maintain the privacy of the
Claimant and their other children in which they have
been substantially successful. In particular, the
children have never been taken to events such as a
book launch at which they would have been exposed
to public view and to media and other publicity;

iv) The Claimant's mother has not placed any

photograph of any of her children on her website or
provided any such photograph for publication;

v) The Claimant's mother has never discussed details

of her private life or those of her family in any
interview;

vi) Only three photographs of Jessica have appeared in

the media and none of these was authorised by the
Claimant's parents. In the case of one of the
photographs (taken on a beach in Mauritius) the
Claimant's mother made a complaint to the Press
Complaints Commission (PCC) which was upheld
by a decision of the PCC as a breach of Cl.3 of the
Code; and

vii) Notwithstanding this, not only the Claimant's

mother but also the rest of the family have been
subjected to continual and repeated attention by the
media and members of the public. This is
unwelcome and threatens in future to involve either
a direct or indirect interference with the Claimant's
private life in particular because his mother
becomes upset while she is out on the street and is
photographed with her children and her children
also become upset either on their own account or
because she has become upset.

14. Mr Warby emphasises as part of his application a number

of what he says are significant omissions from the
Particulars of Claim; (1) no particular act of an intimate
or private nature is said to have been depicted; (2) the
photograph is not said to have portrayed any particular
physical feature of the Claimant; (3) no reliance is placed
on the fact that the Claimant is or was a child, nor is his
infancy said to give rise to any particular sensitivities or
 vulnerabilities relevant to the claim; and (4) no allegation
is made of any actual upset caused at the time of the
photograph to the Claimant or either of his parents and no
claim is made by the Claimant in respect of upset caused
to himself or to his parents.

15. So far as this last point is concerned, it is accepted by the

Claimant that he was not himself upset by the taking of
the photograph or by its subsequent publication and
cannot in any event claim for any upset caused to others.
But this, I think, highlights the somewhat artificial nature
of a claim by a child in relation to the issues of breach of
confidence and privacy. Very young children are likely to
be oblivious to the taking of photographs unless they are
taken at very close range and in a way which causes the
child actual fear and distress. This is not what this case is
about. It is not based on distress or harassment caused to
the Claimant. The issue of principle is whether the
Claimant who is not a public figure in his own right but is
the child of one, is entitled to protection from being
photographed in a public place even where a photograph
shows nothing embarrassing or untoward but in which he
is shown depicted with his parents. Looked at from the
perspective of his parents and in particular his mother the
question is, as I stated earlier, whether someone who is
well known or a public figure, is entitled to a measure of
protection in respect of their ordinary family life even
when conducted in a public place. If such a right is
established, then it must in my opinion extend not only to
the adult individual but also to the infant and dependant
members of his or her family and be enforceable equally
by each of them. This approach is, I believe, consistent
with the Court's duties towards the Claimant as a child. In
relation to under age children the Court has to make
assumptions and a judgment as to what measure of
protection they are entitled to having regard to the way in
which they have been brought up; the way they have led
their lives under the control of their parents and any other
relevant circumstances. The fact that they are children is
obviously important in itself and Mr Spearman has
rightly stressed the Claimant's status as a child and its
recognition (eg) in the Press Complaints Commission
Code and in the 1990 United Nation's Convention on the
Rights of the Child with its emphasis on the need for the
state and its institutions to protect the child from unlawful
interference with his or her privacy, family and home: see
UNCRC Art.16.

16. But one needs, I think, to differentiate between the case

where the child has for medical or some other personal
 reasons come to the knowledge of the general public and
for those very reasons may be particularly vulnerable to
harm from intrusive press exposure and the much more
ordinary case (such as the present one) in which the child
comes into focus largely if not exclusively by being in the
company of his or her much more famous parents. Even
in cases of this kind the Court is bound to have regard to
any particular harm (actual or prospective) which the
child may suffer from having his image publicly
displayed. But in most such cases (and on the pleadings
this is no exception) the child will have suffered no upset
or harm. The purpose of the claim will be to carve out for
the child some private space in relation to his public
appearances.

17. For this reason it is difficult to see how in the converse

case a famous parent who chooses to exploit his children
to gain personal publicity could avoid publication of
photographs taken of his children in a public place simply
by resorting to the device of making that child the
Claimant. There is an obvious argument that the
reasonable expectations of a child in respect of his or her
privacy cannot be wholly divorced from the wishes and
actions of its parents and the Court has to look at all the
relevant circumstances in the round when deciding what
degree of protection to enforce. This is, I think,
recognised in this case from the express reference in the
Particulars of Claim to the degree to which the Claimant's
mother has taken steps to keep her children out of the
limelight.

A little later, at [23], the judge repeated his view that it was artificial for the parents to
bring the action in the name of the child.

16. In our opinion in those paragraphs the judge focuses too much upon the parents
and not enough upon the child. The child has his own right to respect for his privacy
distinct from that of his parents. While it is true that a small child of as little as 19
months is likely to be oblivious of the taking of a photograph of him (or her), at any
rate if taken at long range, and there is no suggestion that David suffered distress or
harassment as a result of the taking (or indeed publication) of the Photograph, we do
not think that it is quite right to describe the issue of principle as being

whether the Claimant who is not a public figure in his own

right but is the child of one, is entitled to protection from being
photographed in a public place even where a photograph shows
nothing embarrassing or untoward but in which he is shown
depicted with his parents.

Moreover, we do not agree that it is artificial for the parents to bring the action in the
name of the child.
 17. It may well be that the mere taking of a photograph of a child in a public place
when out with his or her parents, whether they are famous or not, would not engage
article 8 of the Convention. However, as we see it, it all depends upon the
circumstances. We will return to the context below but it seems to us that the judges
approach depends too much upon a consideration of the taking of the Photograph and
not enough upon its publication. This was not the taking of a single photograph of
David in the street. On the claimants case, which must be taken as true for present
purposes, it was the clandestine taking and subsequent publication of the Photograph
in the context of a series of photographs which were taken for the purpose of their sale
for publication, in circumstances in which BPL did not ask Davids parents for their
consent to the taking and publication of his photograph. It is a reasonable inference
on the alleged facts that BPL knew that, if they had asked Dr and Mrs Murray for
their consent to the taking and publication of such a photograph of their child, that
consent would have been refused.

18. Moreover, on the assumed facts, this was not an isolated case of a newspaper
taking one photograph out of the blue and its subsequent publication. This was at
least arguably a very different case from that to which Baroness Hale referred in her
now well-known example (at [154] of Campbell) of Ms Campbell being
photographed while popping out to buy the milk. The correspondence to which we
have referred shows that a news agency, a freelance photographer and two
newspapers had photographers outside the Murrays house in the period before
publication of the Photograph and a schedule exhibited to the particulars of claim
shows that this was not an isolated event. It is not clear how much BPL was aware of
the interest taken by the media in JK Rowling, her husband and children but it seems
to us to be at least arguable that it was aware of that interest. These are matters for
trial but, in its skeleton argument before the judge, BPL was described as a
commercial picture agency that obtains, holds and licenses photographs for use in the
media and runs a website which, subject to certain terms, permits photographs to be
downloaded by publishers in return for fees. The claimant further relies upon the fact
that BPL describes itself as The Worlds Biggest and Best Celebrity Picture Agency
and as being allied to another business concerned with encouraging members of the
public to sell it celebrity, photos videos and stories, namely www.mrpaparazzi.com.
Since the whole point of putting the Photograph on the website in order to sell the
right to publish it was because of the media interest (including interest in David as JK
Rowlings child), on the material available it seems to us to be likely that BPL was
fully aware of the potential value of taking and publishing such photographs. The
Photograph could, after all, have been published with Davids features pixelated out if
BPL had wished. In these circumstances the parents perception that, unless this
action succeeds, there is a real risk that others will take and publish photographs of
David is entirely understandable.

The correct approach

19. As already indicated, the judge struck the action out under CPR 3.4 on the
assumption that the facts alleged are true. The facts now alleged are somewhat more
extensive than they were before the judge. This was not the trial of a preliminary
issue but an application to strike the action out without a trial. The claimants are
entitled to have the action tried unless the defendants case is plainly correct on the
assumed facts. We do not think that this principle is in dispute.
Privacy the principles

20. The two most important recent cases that have considered the relevant principles
are of course the decision of the House of Lords in Campbell v MGN and the decision
of the ECtHR in Von Hannover v Germany, which were concerned with well-known
celebrities, namely Naomi Campbell and Princess Caroline respectively. In this court
we are bound by the former and not the latter and we fully recognise that the House of
Lords made it clear in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465, that,
in the event of a conflict between a decision of the House and a later decision of the
ECtHR, lower courts, including this court, must follow the former: see per Lord
Bingham at [43-44] in a passage quoted by the judge at [61]. We will therefore focus
in particular upon the decision in Campbell.

Campbell v MGN

21. The facts are well-known but were shortly these. Naomi Campbell is an
internationally famous fashion model. On 1 February 2001 the Daily Mirror
published articles and photographs which Ms Campbell said infringed her right to
respect for her private life contrary to article 8 of the Convention. The photographs
included a photograph of her in the street leaving Narcotics Anonymous (NA),
which had been taken by a freelance photographer specially employed for the
purpose. The source of the information that Ms Campbell went to NA was either an
associate of hers or a fellow addict. Ms Campbell admitted that she was a drug addict
and that she had lied about it publicly. It was accepted on her behalf that, as Lord
Hoffmann put it at [36], it was those falsehoods that entitled the newspaper to publish
the fact that she was addicted to drugs. This left three matters which were said to
infringe her rights under article 8: first, the fact that she attended meetings of NA;
secondly, the published details of her attendance and what happened at the meetings;
and thirdly, the photographs taken in the street without her knowledge or consent: see
eg per Lord Hoffmann at [42].

22. Ms Campbell succeeded before Morland J and, although she failed in this court,
she succeeded by a majority in the House of Lords. Lord Hope, Baroness Hale and
Lord Carswell were in the majority, with Lord Nicholls and Lord Hoffmann
dissenting. However, the difference of opinion was a difference on the facts. So, for
example, Lord Hoffmann said at [31] that, although the principles were stated in
varying language, he could discern no significant differences between the views of the
members of the appellate committee. In these circumstances, we naturally accept that
their reasoning does not significantly differ, although there is we think scope for
argument that it is not quite the same in every case.

23. Articles 8 and 10 of the Convention provide so far as relevant:

Article 8 Right to respect for private and family life

1. Everyone has the right to respect for his family and

private life

2. There shall be no interference by a public authority

with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
 society for the protection of the rights and freedoms of
others.

Article 10 Freedom of expression

1. Everyone has the right of freedom of expression.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, for the protection of the reputation or rights of
others

24. The principles stated by Lord Nicholls can we think be summarised in this way:

i) The right to freedom of expression enshrined in article 10 of the

Convention and the right to respect for a persons privacy enshrined in article 8
are vitally important rights. Both lie at the heart of liberty in a modern state
and neither has precedence over the other: see [12].

ii) Although the origin of the cause of action relied upon is breach of
confidence, since information about an individuals private life would not, in
ordinary usage, be called confidential, the more natural description of the
position today is that such information is private and the essence of the tort is
better encapsulated now as misuse of private information: see [14].

iii)The values enshrined in articles 8 and 10 are now part of the cause of action
and should be treated as of general application and as being as much
applicable to disputes between individuals as to disputes between individuals
and a public authority: see [17].

iv)Essentially the touchstone of private life is whether in respect of the

disclosed facts the person in question had a reasonable expectation of privacy:
see [21].

v) In deciding whether there is in principle an invasion of privacy, it is

important to distinguish between that question, which seems to us to be the
question which is often described as whether article 8 is engaged, and the
subsequent question whether, if it is, the individuals rights are nevertheless
not infringed because of the combined effect of article 8(2) and article 10: see
[22].

25. This last point seems to us to be of potential significance because of the view that
Lord Nicholls took of the suggestion that one of the requirements which a claimant
must satisfy is that publication of matter must be highly offensive in order to be
actionable. He said this at [22]:

Different forms of words, usually to much the same effect,

have been suggested from time to time. The second
Restatement of Torts in the United States (1977), article 652D,
p 394, uses the formulation of disclosure of matter which
 'would be highly offensive to a reasonable person'. In
Australian Broadcasting Corporation v Lenah Game Meats Pty
Ltd (2001) 185 ALR 1, 13, para 42, Gleeson CJ used words,
widely quoted, having a similar meaning. This particular
formulation should be used with care, for two reasons. First, the
'highly offensive' phrase is suggestive of a stricter test of
private information than a reasonable expectation of privacy.
Second, the 'highly offensive' formulation can all too easily
bring into account, when deciding whether the disclosed
information was private, considerations which go more
properly to issues of proportionality; for instance, the degree of
intrusion into private life, and the extent to which publication
was a matter of proper public concern. This could be a recipe
for confusion.

26. It is clear from that paragraph that Lord Nicholls regarded the highly offensive
test as a stricter test than his own formulation of reasonable expectation of privacy.
It seems to us therefore that, in so far as it is or may be relevant to consider whether
publication of information or matter was highly offensive, it is relevant to consider it
in the context, not of whether article 8 is engaged, but of the issues relevant to
proportionality, that is to the balance to be struck between article 8 and article 10.

27. In the subsequent decision of this court in McKennitt v Ash [2006] EWCA Civ
1714, [2008] QB 73, Buxton LJ, with whom Latham and Longmore LJJ agreed,
underlined at [11] the point that articles 8 and 10 of the Convention are now the very
content of the domestic tort that the English court must enforce, and identified two
key questions which must be answered in a case where the complaint is of the
wrongful publication of private information. They are first, whether the information
is private in the sense that it is in principle protected by article 8 (ie such that article 8
is in principle engaged) and, secondly, if so, whether in all the circumstances the
interest of the owner of the information must yield to the right to freedom of
expression conferred on the publisher by article 10. In expressing that conclusion
Buxton LJ quoted the last part of the extract from [22] of Lord Nicholls speech which
we have set out above.

28. Baroness Hales approach was the same as that of Lord Nicholls. She said at
[134] that the balancing exercise may begin when the person publishing the
information knows or ought to know that that there is a reasonable expectation that
the information in question will be kept confidential. At [135] she added that that test
is much simpler than the test in the Australian Broadcasting Corporation case that
publication would be highly offensive to a reasonable person. Then, importantly, she
again stressed (at [137]) that the reasonable expectation of privacy is the threshold
test which brings the balancing exercise into play. In the latter part of her speech, she
considered how the balance should be struck.

29. It is perhaps arguable that Lord Hope took a somewhat different view on the
relevance or potential relevance of the highly offensive test: see eg [100]. However,
he said at [92] that in some cases the question whether the information is public or
private will be obvious and added:
 Where it is not, the broad test is whether disclosure of the
information about the individual ("A") would give substantial
offence to A, assuming that A was placed in similar
circumstances and was a person of ordinary sensibilities.

At [93], after referring to the judgment of Gleeson CJ in the Australian Broadcasting

Corporation case, Lord Hope said that that test was useful in cases where there was
room for doubt but that there was no room for doubt on the facts of the Campbell
case.

30. Thus, Lord Hopes view was that the first question is whether the information is
obviously private. He explained what he meant by obviously private in the first
sentence of his [96]:

If the information is obviously private, the situation will be

one where the person to whom it relates can reasonably expect
his privacy to be respected. So there is normally no need to go
on and ask whether it would be highly offensive for it to be
published.

On that approach, there is no difference between Lord Nicholls, Baroness Hale and
Lord Hope, namely that the first question is whether there is a reasonable expectation
of privacy and, if there is, that article 8 is in principle engaged. Nor is there any
difference between their opinions and that of Lord Carswell, who expressly agreed
with Lord Hope and Baroness Hale.

31. As we said earlier, Lord Hoffmann took the view that he too was applying the
same principles. At [51] he emphasised that the law now focuses upon the protection
of human autonomy and dignity

the right to control the dissemination of information about

ones private life and the right to the esteem and respect of
other people.

At [72] Lord Hoffmann said that the same principles applied to photographs but
added at [73] that the famous and the not so famous who go out in public must accept
that they may be photographed without their consent, just as they may be observed
without their consent. He concluded:

As Gleeson CJ said in Australian Broadcasting Corporation v

Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13, para 41:

Part of the price we pay for living in an organised society

is that we are exposed to observation in a variety of ways
by other people.

32. Lord Hoffmann then drew an important distinction between the mere taking of a
photograph and its publication:

74. But the fact that we cannot avoid being photographed

does not mean that anyone who takes or obtains such
photographs can publish them to the world at large. In
 the recent case of Peck v United Kingdom (2003) 36
EHRR 41 Mr Peck was filmed on a public street in an
embarrassing moment by a CCTV camera.
Subsequently, the film was broadcast several times on
the television. The Strasbourg court said (at p 739) that
this was an invasion of his privacy contrary to article
8:

the relevant moment was viewed to an extent

which far exceeded any exposure to a passer-by
or to security observation and to a degree
surpassing that which the applicant could
possibly have foreseen when he walked in
Brentwood on August 20, 1995.

33. Lord Hoffmann then distinguished in [75 and 76] between the widespread
publication of a photograph of someone in a situation of humiliation or severe
embarrassment and the photograph taken of Ms Campbell. He concluded, in
disagreement with the majority, that there was no invasion of Ms Campbells privacy.
He did not analyse the facts by specific reference to the two stages identified above.
Lord Nicholls doubted whether the disputed photographs were taken in circumstances
in which there was a reasonable expectation of privacy at [25-27] but concluded at
[28-35] that the balance between article 8 and article 10 came down in favour of
permitting publication.

34. The members of the majority concluded that the photographs were taken in
circumstances in which there was a reasonable expectation of privacy and held that
the balance between Ms Campbells rights under article 8 and the newspapers rights
of freedom of expression under article 10 came down in favour of the conclusion that
the publication of the disputed photographs involved a breach of Ms Campbells
rights under article 8. The balance was considered in considerable detail: see per Lord
Hope at [112-125], especially at [122-124], Baroness Hale at [142-158] and Lord
Carswell at [169-170].

35. In these circumstances, so far as the relevant principles to be derived from

Campbell are concerned, they can we think be summarised in this way. The first
question is whether there is a reasonable expectation of privacy. This is of course an
objective question. The nature of the question was discussed in Campbell. Lord
Hope emphasised that the reasonable expectation was that of the person who is
affected by the publicity. He said at [99]:

The question is what a reasonable person of ordinary

sensibilities would feel if she was placed in the same position
as the claimant and faced with the same publicity.

We do not detect any difference between Lord Hopes opinion in this regard and the
opinions expressed by the other members of the appellate committee.

36. As we see it, the question whether there is a reasonable expectation of privacy is a
broad one, which takes account of all the circumstances of the case. They include the
attributes of the claimant, the nature of the activity in which the claimant was
engaged, the place at which it was happening, the nature and purpose of the intrusion,
the absence of consent and whether it was known or could be inferred, the effect on
the claimant and the circumstances in which and the purposes for which the
information came into the hands of the publisher.

37. In the case of a child the position is somewhat different from that of an adult.
The judge recognised this in [23] of his judgment, where he said this, albeit in the
context of a somewhat differently formulated test discussed by Lord Hope at [100] in
Campbell:

This test cannot, of course, be applied to a child of the

Claimant's age who has no obvious sensitivity to any invasion
of his privacy which does not involve some direct physical
intrusion into his personal space. A literal application of Lord
Hope's words would lead to a rejection of any claim by an
infant unless it related to harassment of an extreme kind. A
proper consideration of the degree of protection to which a
child is entitled under Art. 8 has, I think, for the reasons which I
gave earlier to be considered in a wider context by taking into
account not only the circumstances in which the photograph
was taken and its actual impact on the child, but also the
position of the child's parents and the way in which the child's
life as part of that family has been conducted. This merely
reinforces my view about the artificiality of bringing the claim
in the name of the child. The question whether a child in any
particular circumstances has a reasonable expectation for
privacy must be determined by the Court taking an objective
view of the matter including the reasonable expectations of his
parents in those same circumstances as to whether their
children's lives in a public place should remain private.
Ultimately it will be a matter of judgment for the Court with
every case depending upon its own facts. The point that needs
to be emphasized is that the assessment of the impact of the
taking and the subsequent publication of the photograph on the
child cannot be limited by whether the child was physically
aware of the photograph being taken or published or personally
affected by it. The Court can attribute to the child reasonable
expectations about his private life based on matters such as how
it has in fact been conducted by those responsible for his
welfare and upbringing.

38. Subject to the point we made earlier that we do not share the judges view that the
proceedings are artificial, we agree with the approach suggested by the judge in that
paragraph. Thus, for example, if the parents of a child courted publicity by procuring
the publication of photographs of the child in order to promote their own interests, the
position would or might be quite different from a case like this, where the parents
have taken care to keep their children out of the public gaze.

39. As applied in this case, which, unlike McKennitt v Ash, is not a case in which
there was a pre-existing relationship between the parties, the first question at any trial
of the action would be whether article 8 was in principle engaged; that is whether
 David had a reasonable expectation of privacy in the sense that a reasonable person in
his position would feel that the Photograph should not be published. On Lord
Nicholls analysis, that is a lower test than would be involved if the question were
whether a reasonable person in his position would regard publication as either
offensive or highly offensive. That question would or might be relevant at the second,
balancing stage, assuming article 8 to be engaged on the footing that David had a
reasonable expectation that commercial picture agencies like BPL would not set out to
photograph him with a view to selling those photographs for money without his
consent, which would of course have to be given through his parents.

40. At a trial, if the answer to the first question were yes, the next question would be
how the balance should be struck as between the individuals right to privacy on the
one hand and the publishers 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.

41. At each stage, the questions to be determined are essentially questions of fact.
The question whether there was a reasonable expectation privacy is a question of fact.
If there was, the next question involves determining the relevant factors and balancing
them. As Baroness Hale put it at [157], the weight to be attached to the various
considerations is a matter of fact and degree. That is essentially a matter for the trial
judge.

The decision of the judge

42. Since the issue before the judge did not arise at a trial but under CPR 3.4 or CPR
24, the first question for his consideration was whether David had an arguable case
that there was an infringement of his rights under article 8. The judge held that he did
not.

43. His reasoning can be summarised in this way:

vi)The test is one of reasonable expectation of privacy: see [24].

vii) There is no simple rule that the information contained in a photograph

is private if taken in a private place but not if taken in a public place: see
Campbell: see [26].

viii) The majority in Campbell reached their conclusion by taking into

account the additional information contained in some of the photographs and
the accompanying text, namely that she was undergoing treatment for drug
addiction, which distinguished the case from what might have been the case if
the photographs had simply depicted Ms Campbell on a more banal errand
such as a shopping expedition: see [26].

ix)The facts of this case are different from those in Campbell because here
David was being pushed along by his parents on the most ordinary of
occasions: see [27].
x) The facts of this case are very different from those, for example, in Peck v
United Kingdom (2003) 36 EHRR 719, where it was held that the release and
publication of CCTV footage showing the applicant attempting to commit
suicide resulted in the moment being viewed to a far greater extent than he
could have foreseen, and this was not publication of a photograph of someone
which revealed him in a situation of humiliation or severe embarrassment: see
[27], quoting from Lord Hoffmann in Campbell at [74-75]. See also per Lord
Hope at [123] quoted by the judge at [28]. See also [64].

xi)The English courts do not recognise a right to a persons own image; so that
we have not so far held that the mere fact of covert photography is sufficient to
make the information in the photograph confidential; the activity photographed
must be private. If Ms Campbell had simply been going about her business in
a public street there could have been no complaint. See [28] quoting Baroness
Hale at [154].

xii) The facts here are indistinguishable from those in Hosking v Runting
[2005] 1 NZLR 1, where a photographer was commissioned to take
photographs of the eighteen month old twins of a well-known television
personality being pushed down the street by their mother. The action for
breach of c life than Campbell: see [36-49], especially at [45-49]. We take
three examples:

a) it was inherent in the courts analysis that article 8 was engaged

by the publication of the whole range of photographs involved in the
complaint including apparently innocuous images of the Princess
shopping, riding and playing tennis: see [43];

b) the important and perhaps novel aspect of the decision is the

court's acceptance that the relevant criteria were satisfied in relation to
many of the images under consideration, including photographs which
(as Lord Nicholls put it) showed nothing untoward or undignified: see
[44]; and

c) an individuals private life can include ordinary activities such

as family holidays or expeditions which are not public in any sense
beyond the fact that they are conducted in a street or some other public
place: see [45].

xiii) In particular, the decision in Princess Carolines favour did not

depend upon harassment or significant press intrusion: see [48-49] and the
decision of the ECtHR in Sciacca v Italy (2006) 43 EHRR 20. The judges
own views are summarised at [47]:

My own reading therefore of Von Hannover is that it

recognises that an individual whose life and activities
are of public interest may have a legitimate expectation
of privacy in relation to private family and personal
activities which are not in themselves either
embarrassing or intimate in a sexual or medical sense.
It also establishes that in the case of someone like the
 Princess who is well known but not a public figure in
the sense of being a politician or the like, the
publication of the photographs and the information
they contain cannot be justified as a legitimate exercise
of the right to freedom of expression where the sole
purpose of publication is to satisfy readers' curiosity
rather than to contribute to a debate on or the raising of
an issue of general public interest or importance.

xiv) Those views are consistent with those of Buxton LJ in McKennitt v

Ash: see [50-57], especially at [57], where the judge referred to [37] and
quoted [39-42] of McKennitt v Ash, in which Buxton LJ held that the English
courts should pay respectful attention to Von Hannover. It was certainly open
to Eady J, he said, to have regard to Von Hannover in relation to the very
different facts of McKennitt v Ash.

xv) Although Buxton LJ accepted the wider interpretation of Von

Hannover, he also accepted Eady Js conclusion at first instance that the more
trivial information in the book (eg a shopping trip to Italy) did not qualify for
protection under article 8. As the judge put it at [59], Buxton LJ clearly
considered that there must remain a category of cases involving innocuous,
unimportant and unremarkable events, which, although private in one sense,
do not necessarily qualify for protection under article 8. The judge added that
there is, however, no specific guidance (and probably cannot be) as to where
precisely the line should be drawn.

xvi) This case is an attempt to apply Von Hannover in its most absolutist
form: see [64].

xvii) The critical conclusions reached by the judge are at [65-68].

44. Because [65-68] contain the judges critical conclusions we should set them out in
full:

65. It seems to me that a distinction can be drawn between

a child (or an adult) engaged in family and sporting
activities and something as simple as a walk down a
street or a visit to the grocers to buy the milk. The first
type of activity is clearly part of a person's private
recreation time intended to be enjoyed in the company
of family and friends. Publicity on the test deployed in
Von-Hannover is intrusive and can adversely affect the
exercise of such social activities. But if the law is such
as to give every adult or child a legitimate expectation
of not being photographed without consent on any
occasion on which they are not, so to speak, on public
business then it will have created a right for most
people to the protection of their image. If a simple
walk down the street qualifies for protection then it is
difficult to see what would not. For most people who
are not public figures in the sense of being politicians
 or the like, there will be virtually no aspect of their life
which cannot be characterized as private. Similarly,
even celebrities would be able to confine unauthorized
photography to the occasions on which they were at a
concert, film premiere or some similar occasion.

66. I start with a strong predisposition to the view that

routine acts such as the visit to the shop or the ride on
the bus should not attract any reasonable expectation
of privacy. Although the arguments in favour of
freedom of expression have specifically to be
considered once a Claimant's Art. 8 rights are engaged,
it seems to me inevitable that the boundaries of what
any individual can reasonably expect to remain
confidential or private are necessarily influenced by
the fact that we live in an open society with a free
press. If harassment becomes an issue then it can and
should be dealt with specifically as it is by the 1997
Act. I have considerable sympathy for the Claimant's
parents and anyone else who wishes to shield their
children from intrusive media attention. But the law
does not in my judgment (as it stands) allow them to
carve out a press-free zone for their children in respect
of absolutely everything they choose to do. Even after
Von-Hannover there remains, I believe, an area of
routine activity which when conducted in a public
place carries no guarantee of privacy. In my view this
is just such a case. As mentioned earlier, there is no
allegation of any direct harm or distress being caused
to the Claimant or to his parents at the time and I am
not persuaded that his mother's understandable
sensitivity to and upset caused by her children being
photographed on any occasion can of itself be allowed
to dictate what the legal boundaries of protection
should be.

67. It is though important to stress the dangers of

categorizing various types of information for purposes
of defining what is the scope of an individual's private
life for the purposes of Art. 8 and I have taken this into
account in making my own assessment in this case.
Information or events which can in one sense be
described as anodyne or trivial may be of considerable
importance and sensitivity to a particular person in
certain circumstances. Eady J recognized this in
McKennitt v Ash and I endorse that approach. It is a
matter of fact and degree in every case. But I am not
satisfied that the facts pleaded either individually or
collectively are sufficient in this case to engage the
Claimant's Art. 8 rights.
 68. In summary, therefore, I propose to strike out or
dismiss the claim based on breach of confidence or
invasion of privacy for two reasons: firstly, that on my
understanding of the law including Von Hannover
there remains an area of innocuous conduct in a public
place which does not raise a reasonable expectation of
privacy; and secondly, that even if the ECtHR in Von
Hannover has extended the scope of protection into
areas which conflict with the principles and the
decision in Campbell, I am bound to follow Campbell
in preference. Because I regard this case as materially
indistinguishable from the facts in Hosking v Runting I
am satisfied that on that test it has no realistic
prospects of success. In these circumstances it is not
necessary for me to consider the wider issues of
freedom of expression or to perform the balancing
exercise required by reason of Art. 10.

Discussion

45. We have reached a different conclusion from that of the judge. In our opinion it
is at least arguable that David had a reasonable expectation of privacy. The fact that
he is a child is in our view of greater significance than the judge thought. The courts
have recognised the importance of the rights of children in many different contexts
and so too has the international community: see eg R v Central Independent
Television Plc [1994] Fam 194 per Hoffmann LJ at 204-5 and the United Nations
Convention on the Rights of the Child, to which the United Kingdom is a party. More
specifically, clause 6 of the Press Complaints Commission Editors Code of Practice
contains this sentence under the heading Children:

v) Editors must not use the fame, notoriety or position of

the parent or guardian as sole justification for
publishing details of a childs private life.

There is also a publication called The Editors Codebook, which refers to the Code
and to the above statement. Although it is true that the Codebook states (at page 51)
in a section headed Intrusion that the Press Complaints Commission has ruled that
the mere publication of a childs image cannot breach the Code when it is taken in a
public place and is unaccompanied by any private details or materials which might
embarrass or inconvenience the child, which is particularly unlikely in the case of
babies or very young children, it seems to us that everything must depend on the
circumstances.

46. So, for example, in Tugendhat and Christie on The Law of Privacy and the Media
the authors note at paragraph 13.128 (in connection with a complaint made by Mr and
Mrs Blair) that the PCC has stated that:

the acid test to be applied by newspapers in writing about the

children of public figures who are not famous in their own right
(unlike the Royal Princes) is whether a newspaper would write
such a story if it was about an ordinary person.
It seems to us to be at least arguable that a similar approach should be adopted to
photographs. If a child of parents who are not in the public eye could reasonably
expect not to have photographs of him published in the media, so too should the child
of a famous parent. In our opinion it is at least arguable that a child of ordinary
parents could reasonably expect that the press would not target him and publish
photographs of him. The same is true of David, especially since on the alleged facts
here the Photograph would not have been taken or published if he had not been the
son of JK Rowling.

47. Neither Campbell nor Von Hannover is a case about a child. There is no
authoritative case in England of a child being targeted as David was here. There is an
unreported decision of Connell J in MGN Ltd v Attard, 9 October 2001, in which he
expressed doubts as to whether article 8 was engaged in respect of the publication of a
photograph taken in a Malta street of the survivor of the conjoined twins. However,
the facts were very different from this case because the parents would have permitted
publication if they could have agreed a price with the newspaper.

48. The case that particularly struck the judge was, however, Hosking v Runting,
which he regarded as on all fours with this. The facts are indeed similar to those here.
However, for the reasons we gave earlier, we are of the opinion that the test applied in
that case is not the same as the test of reasonable expectation of privacy, which falls to
be applied at the first stage of the analysis. In giving the leading judgment of the New
Zealand Court of Appeal, Gault P and Blanchard J (with whom Tipping J substantially
agreed) described at [117] the two fundamental requirements for a successful claim
for interference with privacy:

1. The existence of facts in respect of which there is a

reasonable expectation of privacy; and

2. publicity given to those private facts that would be

considered highly offensive to an objective reasonable
person.

49. As can be seen, those are separate considerations. For the reasons given earlier,
as explained by Lord Nicholls in Campbell, it is only the first question that has to be
asked in order to decide whether article 8 is in principle engaged. If it is, the second
question may be relevant in carrying out the balancing exercise as between the rights
under article 8 and the rights under article 10. It is true that the court decided both
questions in favour of the defendants but the underlying basis for the conclusions of
Gault and Blanchard JJ can be seen from [161-165] quoted by the judge at [34]:

161. The real concern of the appellants as parents relates

not to the publication of photographs of their two
children in the street, but to publication of the
photographs along with identification and the
association of them with a ''celebrity'' parent. We
accept the sincerity of their anxiety for the wellbeing
of the children and their concern at the prospect of
recurring unwanted media attention. They wish to
protect the freedom of the children to live normal lives
without constant fear of media intrusion. They feel that
 if publication of the present photographs is prevented
there will be no incentive for those who, in the future,
might pursue the children in order to capture
marketable images.

162. We must focus on the issues now presented. If there is

no case for relief now, we cannot address the future.
We are inclined to the view, however, that the concerns
are overstated.

163. We are not persuaded that a case is made out for an

injunction to protect the children from a real risk of
physical harm. We do not see any substantial
likelihood of anyone with ill intent seeking to identify
the children from magazine photographs. We cannot
see the intended publication increasing any risk that
might exist because of the public prominence of their
father.

164. The inclusion of the photographs of Ruby and Bella in

an article in New Idea would not publicise any fact in
respect of which there could be a reasonable
expectation of privacy. The photographs taken by the
first respondent do not disclose anything more than
could have been observed by any member of the public
in Newmarket on that particular day. They do not show
where the children live, or disclose any information
that might be useful to someone with ill intent. The
existence of the twins, their age and the fact that their
parents are separated are already matters of public
record. There is a considerable line of cases in the
United States establishing that generally there is no
right to privacy when a person is photographed on a
public street. Cases such as Peck and perhaps
Campbell qualify this to some extent, so that in
exceptional cases a person might be entitled to restrain
additional publicity being given to the fact that they
were present on the street in particular circumstances.
That is not, however, this case.

165. We are not convinced a person of ordinary sensibilities

would find the publication of these photographs highly
offensive or objectionable even bearing in mind that
young children are involved. One of the photographs
depicts a relatively detailed image of the twins' faces.
However, it is not sufficient that the circumstances of
the photography were considered intrusive by the
subject (even if that were the case, which it is not here
because Mrs Hosking was not even aware the
photographs had been taken). The real issue is whether
publicising the content of the photographs (or the
 ''fact'' that is being given publicity) would be offensive
to the ordinary person. We cannot see any real harm in
it."

50. It seems to us that, although the judges regarded the parents concerns as
overstated, the parents wish, on behalf of their children, to protect the freedom of the
children to live normal lives without the constant fear of media intrusion is (at least
arguably) entirely reasonable and, other things being equal, should be protected by the
law. It is true, as the judges say at [164], that the photographs showed no more than
could be seen by anyone in the street but, once published, they would be disseminated
to a potentially large number of people on the basis that they were children of well-
known parents, leading to the possibility of further intrusion in the future. If the
photographs had been taken, as Lord Hope put it at [123] of Campbell, to show the
scene in a street by a passer-by and later published as street scenes, that would be one
thing, but they were not taken as street scenes but were taken deliberately, in secret
and with a view to their subsequent publication. They were taken for the purpose of
publication for profit, no doubt in the knowledge that the parents would have objected
to them.

51. We recognise that the facts of Hosking v Runting, as in this case, are not the same
as in Campbell, but in our opinion the judges view of whether the children would
have a reasonable expectation of privacy, in the sense that they could reasonably
expect to be left alone without photographs of them being published in the media
without their consent, is at least arguably a view which should not be adopted here. It
does not seem to us to follow from the reasoning of the House of Lords in Campbell
that the judges were correct (let alone plainly correct) on the reasonable expectation
of privacy point.

52. As to [165], as the judge observed at [35], the approach is different from that
approved in Campbell. The approved test is not whether a person of ordinary
sensibilities would find the publication highly offensive or objectionable, even
bearing in mind that young children are involved, but (as Lord Hope put it in the
passage quoted at [35] above) what a reasonable person of ordinary sensibilities
would feel if he or she was placed in the same position as the claimant and faced with
the same publicity. The judges did not consider either of the two questions posed
through the eyes of the reasonable child, or (more realistically) through the eyes of the
reasonable parent on behalf of the child. Although the judge recognised the error, he
said that neither Lord Hope nor Baroness Hale expressed any doubts about the
decision in Hosking v Runting. That is true but the question whether Hosking v
Runting would be followed here was not the question which the House of Lords had
to decide. In these circumstances, the decision in Hosking v Runting was in our
opinion not a sufficient reason to hold that the claimant cannot show a reasonable
expectation of privacy at a trial. Yet, as we read [68], the judges reliance on Hosking
v Runting was a significant part of his reasoning.

53. We note in passing that in Rogers v Television New Zealand Limited [2007]
NZSC 91, although four of the five judges in the Supreme Court said that they were
willing to proceed on the footing that Hosking v Runting represented the law, Elias CJ
and Anderson J (who were admittedly dissenting) expressed doubts: see [23, 25, 26
and 144].
54. As to the judges [65] and [66], as we read his reasoning he focuses on the taking
of the Photograph. As we indicated earlier, it is our opinion that the focus should not
be on the taking of a photograph in the street, but on its publication. In the absence of
distress or the like caused when the photograph is taken, the mere taking of a
photograph in the street may well be entirely unobjectionable. We do not therefore
accept, as the judge appears to suggest in [65], that, if the claimant succeeds in this
action, the courts will have created an image right.

55. We recognise that there may well be circumstances in which there will be no
reasonable expectation of privacy, even after Von Hannover. However, as we see it all
will (as ever) depend upon the facts of the particular case. The judge suggests that a
distinction can be drawn between a child (or an adult) engaged in family and sporting
activities and something as simple as a walk down a street or a visit to the grocers to
buy the milk. This is on the basis that the first type of activity is clearly part of a
person's private recreation time intended to be enjoyed in the company of family and
friends and that, on the test deployed in Von Hannover, publicity of such activities is
intrusive and can adversely affect the exercise of such social activities. We agree with
the judge that that is indeed the basis of the ECtHRs approach but we do not agree
that it is possible to draw a clear distinction in principle between the two kinds of
activity. Thus, an expedition to a caf of the kind which occurred here seems to us to
be at least arguably part of each member of the familys recreation time intended to be
enjoyed by them and such that publicity of it is intrusive and such as adversely to
affect such activities in the future.

56. We do not share the predisposition identified by the judge in [66] that routine acts
such as a visit to a shop or a ride on a bus should not attract any reasonable
expectation of privacy. All depends upon the circumstances. The position of an adult
may be very different from that of a child. In this appeal we are concerned only with
the question whether David, as a small child, had a reasonable expectation of privacy,
not with the question whether his parents would have had such an expectation.
Moreover, we are concerned with the context of this case, which was not for example
a single photograph taken of David which was for some reason subsequently
published.

57. It seems to us that, subject to the facts of the particular case, the law should
indeed protect children from intrusive media attention, at any rate to the extent of
holding that a child has a reasonable expectation that he or she will not be targeted in
order to obtain photographs in a public place for publication which the person who
took or procured the taking of the photographs knew would be objected to on behalf
of the child. That is the context in which the photographs of David were taken.

58. It is important to note that so to hold does not mean that the child will have, as the
judge puts it in [66], a guarantee of privacy. To hold that the child has a reasonable
expectation of privacy is only the first step. Then comes the balance which must be
struck between the childs rights to respect for his or her private life under article 8
and the publishers rights to freedom of expression under article 10. This approach
does not seem to us to be inconsistent with that in Campbell, which was not
considering the case of a child.

59. In these circumstances we do not think that it is necessary for us to analyse the
decision in Von Hannover in any detail, especially since this is not an appeal brought
 after the trial of the action but an appeal against an order striking the action out.
Suffice it to say that, in our opinion, the view we have expressed is consistent with
that in Von Hannover, to which, as McKennitt v Ash makes clear, it is permissible to
have regard. We do not disagree with the judges summary of the decision in Von
Hannover which we have quoted at [43 ix)] above. Mr Warby drew our attention to
the oral submissions made to the ECtHR by Mr Prinz on behalf Princess Caroline,
where he emphasised the campaign of harassment conducted against her by the
German media. That was indeed part of the context in which the decision was made.
For his part Mr Spearman stressed the fact that some of the photographs, the
publication of which was held to infringe Princess Carolines rights under article 8,
showed her doing no more than walking in public.

60. The context of Von Hannover was therefore different from this but we have little
doubt that, if the assumed facts of this case were to be considered by the ECtHR, the
court would hold that David had a reasonable expectation of privacy and it seems to
us to be more likely than not that, on the assumed facts, it would hold that the article
8/10 balance would come down in favour of David. We would add that there is
nothing in the Strasbourg cases since Von Hannover which in our opinion leads to any
other conclusion: see eg Reklos and Davourlis v Greece, petition no 1234/05, 6
September 2007.

61. In these circumstances, the judge was in our judgment wrong to strike out Davids
claim on the ground that he had no arguable case that he had a reasonable expectation
of privacy. Understandably, the judge did not consider whether, if article 8 was
engaged, David had an arguable case that the balance should be struck in his favour.
In our opinion David has an arguable case on both points and his parents should be
permitted to take his claim to trial on his behalf.

62. The DPA

63. Part of the judges reasoning which led to his striking out Davids claim under the
DPA was his conclusion that article 8 was not engaged and that BPL was entitled to
publish or procure the publication of the Photograph in the exercise of its right to
freedom of expression contained in article 10. If the trial judge were to hold that
article 8 is engaged and that the article 8/10 balance should be struck in Davids
favour, it would follow that BPLs admitted processing of Davids personal data was
unlawful. The judge expressly recognised the position in [72]. It would also follow
that the processing was unfair and that none of the conditions of schedule 2 to the
DPA (including the only condition relied upon, namely that in paragraph 6(1)) was
met: see [76].

64. In these circumstances, the issues under the DPA should be revisited by the trial
judge in the light of his or her conclusions of fact. Those issues include the other
issues considered by Patten J under this head, notably (but not restricted to) those
relating to causation and damage. Given that there is now to be a trial, we do not
think that the claims under the DPA should be struck out, whatever the conclusions of
fact may be. They seem to us to raise a number of issues of some importance,
including the meaning of damage in section 13(1) of the DPA. It seems to us to be
at least arguable that the judge has construed damage too narrowly, having regard to
the fact that the purpose of the Act was to enact the provisions of the relevant
Directive. All these issues should be authoritatively determined at a trial.
CONCLUSION

65. For the reasons we have given, we allow the appeal and direct that there be a trial
of all the issues between the parties, unless of course they can be settled.