Intellectual Property Law

The European Convention on Human Rights & Minors' Right to Privacy in UK

By IBLS Editor

The Civil Division of a United Kingdom ("UK") 'Court of Appeal' decided on May 7th, 2008, that a complete trial must be conducted on the issue of right to privacy, under the EU Convention on Human Rights and Data Protection Act of 1998, for a minor whose photograph was published without parental authorization. This is article informs on this recently-decided UK case and the interesting use of the European Convention on Human Rights rules to protect the privacy of a minor.

Murray v. Express Newspapers plc, Et. (EWCA Civ 446 (2008)) is a case recently decided by the Civil Division of the UK 'Court of Appeal.'  Plaintiffs are the famous parents of a minor child who was photographed without their parents consent and whose photograph was published by one of the defendants to this complaint.  The child mother is Mrs. Joanne Murray, author of the well known series of Harry Potter.  There are two defendants to this complaint, one is the photographer who took the picture of the minor and his parents; and the other defendant is the newspaper that published this picture.  The newspaper settled with the plaintiffs and the case continued against the photographer.

Plaintiff alleged that one of the defendants took a non-authorized photograph of the minor (when the minor was over 1 year old) and the second defendant later published this photograph in a local newspaper, all without parental consent. The photograph was taken in a public street and "It showed him [the minor] being pushed along in a buggy by his father with his mother walking alongside." It is well stated in the record that the famous mother/plaintiff zealously protects her privacy and keeps her family outside the public eye.  Indeed, the complaint affirms that the mother never takes her children to public events.

Plaintiff sought an injunction to restrain further publication of this photograph or any other minor's photograph without the parents' consent.  They claim the minor has the right to privacy under Article 8 of the European Convention on Human Rights and, as alternative relief, they claim protection under the UK Data Protection Act 1998.   

The Judge ruled for the defendants and the plaintiffs appealed. The judged framed the legal question to be decided as whether a minor, who was not a public figure himself but the son of a public figure, was entitled to protection from being photographed in a public place, even though the photograph has nothing embarrassing or untoward but contains a mere family scene with the minor parents.   

The judge decided this question by holding that the facts of this case were not sufficient to bring a claim under article 8 of the European Convention on Human Rights. Indeed, the judge said, the publishing defendant was entitled to freedom of speech under article 10 to the Convention on Human Rights.  Further, the judged held that there was not expectation of privacy in this case by saying: "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."

On appeal, plaintiff's arguments prevailed.  The Court of Appeal reversed the decision and ordered that a complete trial be conducted.

The Court of Appeal held that, subject to the facts of this case, the law should protect children from 'intrusive media attention.'  Children have a reasonable expectation of privacy that they would not be targeted by the photographers in public places.  After establishing that children have the right to claim reasonable expectation of privacy, the court said, a balance should be reached between the child's right to respect for his private life under article 8 of the Convention on Human Rights and the publishers' right of freedom of expression under article 10 of the Convention.   

Then, depending on the decision of whether article 8 to the Convention applies, the trial court may consider whether the claim under the Data Protection Act 1998 should be entertained. In fact, if the court decides that article 8 of the Convention triumphs article 10; then the trial court will have to consider whether the publishers' processing of the minor's photograph constitutes the processing of unlawful personal data. 

The Court of Appeal considered that the judge of first recourse centered its analysis on the famous parents' right rather than on the minor's rights.  The Court of Appeal said this was a claim filed by the parents on behalf of their minor son to protect the rights of their son.  It was not a claim from the parents to protect their right to family privacy. 

As per this decision on May 8, 2008, and if the parents and defendant do not reach any out-of-court agreement, this case will go to trial; if it does, once decided it could be a great precedent on the application of the Convention on Human Rights and the UK Data Protection Act 1998.   

Full post as published by IBLS Internet Law Blog on May 12, 2008 (boomark / email).