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Privacy law: themes for the courts in 2013

With the Leveson Inquiry, the ongoing phone hacking litigation and various photographs of (semi) naked royals, amongst other things, the issue of privacy was never far from the spotlight during 2012.

February 2013

Contents of this article

With the Leveson Inquiry, the ongoing phone hacking litigation and various photographs of (semi) naked royals, amongst other things, the issue of privacy was never far from the spotlight during 2012.

CalendarOver the past year, there have been a number of interesting developments in privacy law in the English and European courts.  From the disparate cases, we have picked out five broad themes that we think are likely to continue to develop during 2013.

  • The arguable broadening of the types of people who may be considered public figures and so would usually have a lower expectation of privacy than purely private individuals.  Case law is increasingly suggesting that anyone in the public eye could potentially be a public figure, not just politicians and other public office holders.  As such, this category could include actors, sports stars, celebrities and even children who appear in the public arena.
  • The circumstances in which children may have a reduced expectation of privacy – for example, because the child has entered the public arena such that he or she is no longer a purely private person, or because the child's expectation of privacy has been compromised by the actions of a parent.
  • The need for caution when publishing photographs that contain private information.  The courts tend to consider photographs more intrusive than written descriptions of the same information.
  • The risks of publishing private information even if it is in the public domain, such as on social media.
  • The potential increase in privacy damages in the future.

We consider these five themes in more detail below.  However, in summary, a key point to take away from the past 12 months is that English privacy law is continuing to develop at a rapid rate and on a case by case basis – and this seems unlikely to change in 2013.

Public figures

in the public eyePublic figures are generally seen by the English courts as having a lower expectation of privacy than purely private individuals, so this issue can be an important part of the court's assessment in a privacy case.  While there is no single definition of "public figure", a public figure is generally considered to be someone who exercises some form of public or official function.  A key issue for the courts at the moment is the extent to which someone who does not exercise such a function, but is in the public eye, may also be considered a public figure.

The European Court of Human Rights ("ECHR") appeared to take a broad view of "public figure" in Axel Springer AG v Germany and Von Hannover v Germany (No 2).  The ECHR cited the Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the Right to Privacy, which notes that public figures include "all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain".  On this basis, the ECHR found in Springer that a German television actor who played the part of a police superintendent over a long period of time was sufficiently well known in Germany to be a public figure.

It appears therefore that the ECHR's view is that anyone who is sufficiently well known to the public can potentially be a "public figure", even if they do not perform any official public functions.  This has been reflected in subsequent English court decisions.

In Spelman v Express Newspapers, the High Court recognised that those in sport and the performing arts, even if they are children, could potentially be public figures.  Applying this principle, the former England football team manager Steve McClaren was held to be a prominent public figure who belonged "to the category of those from whom the public could reasonably expect a higher standard of conduct" – even though he had not been England manager for almost five years by that time (McClaren v News Groups Newspapers).

It appears that public figures need not necessarily be household names.  In Trimingham v Associated Newspapers (currently under appeal), the High Court rejected Ms Trimingham's argument that she was a purely private individual.  She had worked as a press officer for one of the country's leading politicians, and had an affair with that politician knowing that it was likely to give rise to a scandal.  As such, it was held that the public had an interest in knowing whether they could trust her and the politician, and whether the politician's personal life would be likely to affect the business of government.

Conversely, a more recent decision indicates that not everyone in the public eye will necessarily be a public figure.  In RocknRoll v News Group Newspapers, it was held that Edward RocknRoll (Sir Richard Branson's nephew and Kate Winslet's new husband) was not a public figure, neither because of his former role as a middle manager at his uncle's company Virgin Galactic nor because of his relationship with Miss Winslet.  The court noted that he had not apparently sought any publicity about his relationship with Miss Winslet, and to the extent he had "briefly become something of a public figure" because of it, this was not sufficient to place him in the public sphere in his own right.

The growing body of case law suggests that those who try to keep out of the public eye will find it easier to argue that they are purely private individuals than those who court publicity.


cameraThe Court of Appeal's 2008 decision in Murray v Big Pictures, although relating to a strike out application, remains probably the most helpful guidance on the privacy rights of children.  It concerned long lens photographs of the author J.K. Rowling's son taken covertly in the street.  The judgment makes it clear, for example, that children – including the children of famous people – have their own right to privacy which is distinct from that of their parents. Two cases from 2012 have given further guidance on the privacy rights of children.

In Spelman v Express Newspapers, the judge noted that "children enjoy no general right to privacy simply by reason of their age".  He made it clear that children can potentially be public figures, and so have a reduced expectation of privacy, if for example they participate in public sports or performing arts.  The judge took the view that the diminution of an individual's reasonable expectation of privacy cannot only apply to those at the highest level of their sport or performing art, but may also apply to those aiming for the highest level.  On this basis, children who appear in the public arena as, for example, sportspeople, actors/actresses, musicians or models may well find that the courts consider that they have a reduced expectation of privacy.

The case of AAA v Associated Newspapers illustrates how the actions of a parent can potentially compromise a child's reasonable expectation of privacy (a potential issue that was flagged up by the court in Murray).  While the child in AAA had a reasonable expectation of privacy on the issue of her paternity, this was given less weight by the judge because of her mother's conduct in hinting at, or permitting speculation about, the identity of her child's father with people she had not previously met.  One lesson from the judgment is that parents should take care in respect of their children's privacy.  This case shows that it can all too easily be compromised.

However, the courts have shown willing to consider the impact on children of allowing publication of embarrassing material. In Rocknroll v News Group Newspapers, the judge noted that publication of a photograph depicting the stepfather of Kate Winslet's children behaving in a foolish and immature manner when half naked would lead to a risk of those children being subjected to ridicule.


It is a well-established principle that publication of a photograph containing private information can be far more intrusive than a written description of that same information.  Cases from the past year have only served to reinforce this.

paper cut out peopleIn AAA v Associated Newspapers, the newspaper was entitled to publish stories containing private information about a child's paternity as this was deemed to be in the public interest.  However, publication of an unpixelated photograph of the child was an infringement of the child's privacy rights, as it did not add any additional information and there was no "exceptional public interest" in the publication, particularly given that the photograph was taken and published without the parent's consent.

The ECHR reached a similar view on a photograph in three related cases, Küchl v Austria, Rothe v Austria and Verlagsgruppe News GmbH and Bobi v Austria.  These cases concerned articles which alleged that a principal and deputy principal of a Roman Catholic seminary had had gay sexual relations with some of the seminarians.  Two of the articles were accompanied by a photograph, taken at a private birthday party at the principal's home, showing the principal with his hand on a seminarian's crotch.  The articles were found not to infringe the principal's or deputy principal's privacy rights, as they were within the limits of permissible reporting on a matter of general interest.  However, the publication of the photograph went too far; the principal's interest in the protection of the intimate sphere of his private life outweighed the interest of the publisher in further publication of the photograph.

These cases suggest that publishers would be well advised to take a cautious approach to photographs showing private information.  If an issue impinging on a person's private life can be explained with words, the publisher may well need to show special circumstances to justify publishing a photograph (for example, an exceptional public interest, where the photograph concerns a child).

Public domain

In August 2012, one of the reasons given by The Sun to justify its decision to publish the infamous 'naked Prince Harry' photographs was that, given their wide dissemination on the internet, "the photographs were indisputably in the public domain everywhere in the world".

The extent to which private information is already in the public domain can be a relevant consideration for the courts in privacy cases, especially when deciding whether to grant an interim injunction.  Max Mosley famously failed to win an interim injunction against the News of the World in 2008 because the information at issue was already so widely available in the public domain that there was "in practical terms, no longer anything which the law can protect".

However, private information can still be capable of protection, including by an interim injunction, even where it has been publicly accessible.  In RocknRoll v News Group, photographs of the Claimant partially-naked had been published on a Facebook page and could initially only be viewed by the poster's 1,500 or so friends, although later (apparently due to changes in privacy settings) they could in be viewed by anyone with a Facebook account, before being taken down.  It was held that, even though the photographs had been publicly accessible for a time, there was no evidence of widespread public inspection of the photographs.  Indeed, the judge thought it likely that the photographs would only have been found by "very expert, expensive and diligent research" or by a tip-off.  As such, the Claimant stood a good chance of establishing at trial that he had a reasonable expectation of privacy in the photographs, notwithstanding their limited circulation on Facebook, and partly for this reason an interim injunction was awarded.

social mediaIn the wake of the Prince Harry photos controversy, the Press Complaints Commission issued new guidance on privacy and the public domain.  The guidance sets out a number of factors editors should consider when deciding whether to publish material that has entered the public domain, including the nature of the material, the extent of previous publications, and any public interest in publication.  It emphasises that editors should take care when considering publishing material in a different context, particularly that sourced from social networking sites.

With the ongoing popularity of online news/blog sites and social media, and their increasing use in news reporting, the tension between private information and the public domain is highly likely to continue into 2013.


The highest privacy damages award by the UK courts is still the £60,000 awarded to Max Mosley in 2008 (although some of the phone hacking settlements have reportedly been considerably higher).  In Spelman v Express Newspapers, Tugendhat J commented that "it can no longer be assumed that damages at those levels are the limit of the court's powers".

It looks likely that the level of privacy damages will come under further scrutiny during 2013.  The civil costs reforms due to come into force during 2013 include a 10% increase in non-pecuniary general damages, including for breach of privacy.  In his report, Lord Justice Leveson commented that a 10% increase on modest privacy awards would "have little effect".  He recommended that the Civil Justice Council should review the level of damages in privacy, breach of confidence and data protection cases and make recommendations on the appropriate level of damages for distress in such cases.  It remains to be seen whether this recommendation will be acted upon.

If you have any questions on this article please contact us.

Privacy law: temes for the courts in 2013
Mark Dennis

Mark Dennis

Jessie Prynne


Mark Dennis and Jessie Prynne look at recent themes which have been emerging from privacy law cases and that will continue to develop during the course of 2013.

"It is a well-established principle that publication of a photograph containing private information can be far more intrusive than a written description of that same information.  Cases from the past year have only served to reinforce this."