2.
Interference with the person, defamation, right of privacy
a)
Interference with the person
(1)
Wilson v Pringle [1987] QB 237 (CA) (battery)
Facts:
The claimant (C) and the defendant (D), both aged 13, were schoolboys in the same class. C claimed that he
was seriously injured because D had intentionally jumped on him. D claimed that he had merely pulled of C's
schoolbag in the course of ordinary horseplay and that as a result C had fallen to the ground and sustained his
injuries.
Croom-Johnson LJ
The action of trespass to the person, in its sense where there is an assault to or a battery of the plaintiff, is of
great antiquity. (…) Tuberville v. Savage (1669) 1 Mod. 3 was an action for assault. The defendant clapped his
hand upon his sword and said to the plaintiff, "If it were not assize-time, I would not take such language." The
court ruled that there was no threat, and accordingly no assault. This case is authority that there must be not
only a deliberate threat (in an assault) or a deliberate touching (in battery) but also hostile behaviour. If the
intention is obviously hostile, that will suffice, but it was recognised that there are many circumstances in life
where contact with one's fellow men is not only unavoidable but even if deliberate may also be innocent. It was
said, "if one strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no
intention to assault; but if one, intending to assault, strike at another and miss him, this is an assault:..."
Cole v. Turner (1704) 6 Mod. 149 was an action in trespass for assault and battery. Holt C.J. ruled that
the least touching is a battery if it is done in anger, but that touching without violence or design of harm
is no battery, and that violence in a rude and inordinate manner is a battery. Again, the case is authority
for the proposition that for a battery there must be either an intention to harm or overt hostility.
It is not possible, even if it were desirable, to ignore the distinction between torts of negligence and torts of
trespass strictly so called. This distinction has to be borne in mind in view of a submission made on behalf of
the defendant, which would have had the effect of blurring the lines of demarcation between the two causes of
action. In a situation (such as the present) in which both causes of action are sought to be raised it is necessary
to be as precise as possible in seeing which of the facts giving rise to that situation are appropriate to which
cause of action. The first distinction between the two causes of action where there is personal injury is the
element of contact between the plaintiff and defendant: that is, a touching of some sort. In the action for
negligence the physical contact (where it takes place at all) is normally though by no means always unintended.
In the action for trespass, to constitute a battery, it is deliberate. Even so it is not every intended contact which
is tortuous. Apart from special justifications (such as acting in self-defence) there are many examples in
everyday life where an intended contact or touch is not actionable as a trespass. These are not necessarily those
(such as shaking hands) where consent is actual or to be implied. They may amount to one of the instances had
in mind in Tuberville v. Savage, 1 Mod. 3 which take place in innocence. A modern instance is the batsman
walking up the pavilion steps at Lord's after making a century. He receives hearty slaps of congratulation on
his back. He may not want them. Some of them may be too heavy for comfort. No one seeks his permission, or
can assume he would give it if it were asked. But would an action for trespass to the person lie? Another
ingredient in the tort of trespass to the person is that of hostility. The references to anger sufficing to turn a
touch into a battery (Cole v. Turner, 6 Mod. 149) and the lack of an intention to assault which prevents a
gesture from being an assault are instances of this. If there is hostile intent, that will by itself be cogent evidence
of hostility. But the hostility may be demonstrated in other ways. (…)
2
Although we are all entitled to protection from physical molestation we live in a crowded world in which
people must be considered as taking on themselves some risk of injury (where it occurs) from the acts of others
which are not in themselves unlawful. If negligence cannot be proved, it may be that an injured plaintiff who is
also unable to prove a battery, will be without redress.
b)
Right of privacy?
(2)
Kaye v Robertson [1991] FSR 62 (CA)
Facts:
Kaye (K) was a well-known actor who had undergone very extensive surgery on his head after an accident. The
first defendant (D) was the editor of "The Sunday Sport," a tabloid renowned for far-fetched "scoops" and
containing advertisements for pornographic material. While K was in hospital recovering from his injuries,
journalists from the first defendant's newspaper gained access to his private hospital room, ignoring the notices
prohibiting such entry. They interviewed K at length and took photographs using flash photography before
being ejected by security staff. D then announced that they intended publishing the article on the basis that K
had consented to the interview. K sought an interim injunction to prevent publication, alleging malicious
falsehood, libel, passing off and trespass to the person. He claimed that he had not consented to the interview
and had anyway (to D's knowledge) not been in a fit state to consent; shortly after the "interview" he had no
recollection of the incident.
Glidewell LJ
It is well-known that in English law there is no right to privacy, and accordingly there is no right of
action for breach of a person's privacy. The facts of the present case are a graphic illustration of the
desirability of Parliament considering whether and in what circumstances statutory provision can be
made to protect the privacy of individuals. In the absence of such a right, the plaintiff's advisers have
sought to base their claim to injunctions upon other well-established rights of action.
These are:
1. Libel
2. Malicious falsehood
3. Trespass to the person
4. Passing off.
The appeal canvassed all four rights of action, and it is necessary to deal with each in turn.
1. Libel
The basis of the plaintiff's case under this head is that the article as originally written clearly implied that Mr.
Kaye consented to give the first "exclusive" interview to Sunday Sport, and to be photographed by their
photographer. This was untrue: Mr. Kaye was in no fit condition to give any informed consent, and such
consent as he may appear to have given was, and should have been known by Sunday Sport's representative to
be. of no effect. The implication in the article would have the effect of lowering Mr. Kaye in the esteem of
right-thinking people, and was thus defamatory. The plaintiff's case is based on the well-known decision in
Tolley v. J.S. Fry & Sons Ltd. [1931] A.C. 333. Mr. Tolley was a well-known amateur golfer. Without his
consent, Fry published an advertisement which consisted of a caricature of the plaintiff with a caddie, each with
a packet of Fry's chocolate protruding from his pocket. The caricature was accompanied by doggerel verse
which used Mr. Tolley's name and extolled the virtues of the chocolate. The plaintiff alleged that the
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advertisement implied that he had received payment for the advertisement, which would damage his reputation
as an amateur player. The judge at the trial ruled that the advertisement was capable of being defamatory, and
on appeal the House of Lords upheld this ruling. It is in my view certainly arguable that the intended article
would be libellous, on the authority of Tolley v. Fry. I think that a jury would probably find that Mr. Kaye had
been libelled, but I cannot say that such a conclusion is inevitable. It follows that I agree with Mr. Milmo's
submission and in this respect I disagree with the learned judge; I therefore would not base an injunction on a
right of action for libel.
2. Malicious Falsehood
The essentials of this tort are that the defendant has published about the plaintiff words which are false, that
they were published maliciously, and that special damage has followed as the direct and natural result of their
publication. (…) In the present case I have no doubt that any jury which did not find that the clear implication
from the words contained in the defendants' draft article were false would be making a totally unreasonable
finding. Thus the test is satisfied in relation to this cause of action. As to malice I equally have no doubt from
the evidence, including the transcript of the tape-recording of the "interview" with Mr. Kaye in his hospital
room which we have read, that it was quite apparent to the reporter and photographer from Sunday Sport that
Mr. Kaye was in no condition to give any informed consent to their interviewing or photographing him.
3. Trespass to the person
It is strictly unnecessary to consider this cause of action in the light of the view I have expressed about
malicious falsehood. However, I will set out my view shortly. The plaintiff's case in relation to this cause of
action is that the taking of the flashlight photographs may well have caused distress to Mr. Kaye and set back
his recovery, and thus caused him injury. In this sense it can be said to be a battery. Mr. Caldecott, for Mr.
Kaye, could not refer us to any authority in which the taking of a photograph or indeed the flashing of a light
had been held to be a battery. Nevertheless I am prepared to accept that it may well be the case that if a bright
light is deliberately shone into another person's eyes and injures his sight, or damages him in some other way,
this may be in law a battery. But in my view the necessary effects are not established by the evidence in this
case. Though there must have been an obvious risk that any disturbance to Mr. Kaye would set back his
recovery, there is no evidence that the taking of the photographs did in fact cause him any damage.
4. Passing off (…)
Bingham LJ
Any reasonable and fair-minded person hearing the facts which Glidewell L.J. has recited would in my
judgment conclude that these defendants had wronged the plaintiff. I am therefore pleased to be persuaded that
the plaintiff is able to establish, with sufficient strength to justify an interlocutory order, a cause of action
against the defendants in malicious falsehood. Had he failed to establish any cause of action, we should of
course have been powerless to act, however great our sympathy for the plaintiff and however strong our distaste
for the defendants' conduct.
This case nonetheless highlights, yet again, the failure of both the common law of England and statute to
protect in an effective way the personal privacy of individual citizens. This has been the subject of much
comment over the years, perhaps most recently by Professor Markesinis (The German Law of Torts, 2nd
edn., 1990,page 316) where he writes: "English law, on the whole, compares unfavourably with German
law. True, many aspects of the human personality and privacy are protected by a multitude of existing
torts but this means fitting the facts of each case in the pigeon-hole of an existing tort and this process
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may not only involve strained constructions; often it may also leave a deserving plaintiff without a
remedy."
The defendants' conduct towards the plaintiff here was "a monstrous invasion of his privacy" (…). We cannot
give the plaintiff the breadth of protection which I would, for my part, wish. The problems of defining and
limiting a tort of privacy are formidable, but the present case strengthens my hope that the review now in
progress may prove fruitful.
(3)
Michael Douglas v Hello!, [2001] QB 967 (CA, application for interlocutory injunction)
Facts:
The claimants, Michael Douglas and Catherine Zeta-Jones, applied for an interlocutory injunction against the
publication on photographs taken at their wedding at the Plaza Hotel New York on 18-19 November 2000 in
Hello! magazine. At the wedding, only authorised photographers were permitted. The claimants had granted the
exclusive right to publish these photographs to OK!, a magazine competing with Hello!
Sedley LJ
Is there today a right of privacy in English law?
109. The common law, and equity with it, grows by slow and uneven degrees. It develops reactively, both
in the immediate sense that it is only ever expounded in response to events and in the longer-term sense that
it may be consciously shaped by the perceived needs of legal policy. The modern law of negligence
exemplifies both senses.
110. The history of the law of confidence, however, while it displays many instances of the first kind of
reactivity, has shown little of the second. The courts have done what they can, using such legal tools as were
to hand, to stop the more outrageous invasions of individuals' privacy; but they have felt unable to
articulate their measures as a discrete principle of law. Nevertheless, we have reached a point at which it
can be said with confidence that the law recognises and will appropriately protect a right of personal
privacy.
111. The reasons are twofold. First, equity and the common law are today in a position to respond to an
increasingly invasive social environment by affirming that everybody has a right to some private space.
Secondly, and in any event, the Human Rights Act 1998 requires the courts of this country to give
appropriate effect to the right to respect for private and family life set out in Article 8 of the European
Convention on Human Rights and Fundamental Freedoms. The difficulty with the first proposition resides
in the common law's perennial need (for the best of reasons, that of legal certainty) to appear not to be doing
anything for the first time. The difficulty with the second lies in the word ""appropriate". But the two sources
of law now run in a single channel because, by virtue of s.2 and s.6 of the Act, the courts of this country
must not only take into account jurisprudence of both the Commission and the European Court of Human
Rights which points to a positive institutional obligation to respect privacy; they must themselves act
compatibly with that and the other Convention rights. This, for reasons I now turn to, arguably gives the final
impetus to the recognition of a right of privacy in English law.
(4)
Naomi Campbell v MGN Limited [2004] 2 AC 457 (HL)
Facts:
The claimant (C) is a famous fashion model. In interviews she had always stated that, in contrast to many
models, she did not take drugs, stimulants or tranquillisers. This was untrue; she had, in fact, become addicted
to drugs. The defendant (M) published in the Mirror an article that disclosed that Miss Campbell was a drug
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addict. It revealed that she was receiving therapy with Narcotics Anonymous and gave some details of the
meetings that she was attending. It was illustrated by photographs showing her leaving a Narcotics Anonymous
meeting in Chelsea. The Court of Appeal gave judgment for D. On her appeal to the House of Lords C
conceded that D was entitled to publish the fact that she was a drug addict. She claimed, however, that, by
publishing photographs and details of the meetings, D had gone too far.
Lord Nicholls of Birkenhead (minority view)
11 In this country, unlike the United States of America, there is no over-arching, all-embracing cause of
action for "invasion of privacy": see Wainwright v Home Office [2004] AC 406. But protection of various
aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions.
(…) In this country development of the law has been spurred by enactment of the Human Rights Act
1998.
12 The present case concerns one aspect of invasion of privacy: wrongful disclosure of private information. The
case involves the familiar competition between freedom of expression and respect for an individual's privacy.
Both are vitally important rights. Neither has precedence over the other. The importance of freedom of
expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart
of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an
individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a
democratic state: see La Forest J in R v Dyment [1988] 2 SCR 417, 426.
13 The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of
private information by means of the cause of action which became known as breach of confidence. A breach of
confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this
nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action
was based on improper use of information disclosed by one person to another in confidence. (…)
14 This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential
relationship. In doing so it has changed its nature. (…) The continuing use of the phrase "duty of confidence"
and the description of the information as "confidential" is not altogether comfortable. Information about an
individual's private life would not, in ordinary usage, be called "confidential". The more natural description
today is that such information is private. The essence of the tort is better encapsulated now as misuse of
private information.
16 The European Convention on Human Rights, and the Strasbourg jurisprudence, have undoubtedly
had a significant influence in this area of the common law for some years. The provisions of article 8,
concerning respect for private and family life, and article 10, concerning freedom of expression, and the
interaction of these two articles, have prompted the courts of this country to identify more clearly the different
factors involved in cases where one or other of these two interests is present. Where both are present the courts
are increasingly explicit in evaluating the competing considerations involved. (…)
21 Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question
had a reasonable expectation of privacy.
28 (…) I prefer to proceed to the next stage and consider how the tension between privacy and freedom of
expression should be resolved in this case, on the assumption that the information regarding Miss Campbell's
attendance at Narcotics Anonymous meetings retained its private character. At this stage I consider Miss
Campbell's claim must fail. I can state my reason very shortly. On the one hand, publication of this information
in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a
comparatively minor degree. On the other hand, non-publication of this information would have robbed a
legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This
information was published in order to demonstrate Miss Campbell's commitment to tackling her drug
problem. The balance ought not to be held at a point which would preclude, in this case, a degree of
journalistic latitude in respect of information published for this purpose.
Lord Hoffmann (minority view)
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58 The reason why Mr Caldecott concedes that the "Mirror" was entitled to publish the fact of her drug
dependency and the fact that she was seeking treatment is that she had specifically given publicity to the very
question of whether she took drugs and had falsely said that she did not. I accept that this creates a sufficient
public interest in the correction of the impression she had previously given.
59 The question is then whether the "Mirror" should have confined itself to these bare facts or whether it
was entitled to reveal more of the circumstantial detail and print the photographs. (…)
62 In my opinion, it would be inconsistent with the approach which has been taken by the courts in a number of
recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have
been necessary. The practical exigencies of journalism demand that some latitude must be given. Editorial
decisions have to be made quickly and with less information than is available to a court which afterwards
reviews the matter at leisure. And if any margin is to be allowed, it seems to me strange to hold the "Mirror"
liable in damages for a decision which three experienced judges in the Court of Appeal have held to be
perfectly justified.
Lord Hope of Craighead (majority view)
99 The approach which the Court of Appeal took to this issue seems to me, with great respect, to be quite
unreal. I do not think that they had a sound basis for differing from the conclusion reached by the trial judge as
to whether the information was private. They were also in error, in my opinion, when they were asking
themselves whether the disclosure would have offended the reasonable man of ordinary susceptibilities. The
mind that they examined was the mind of the reader: para 54. This is wrong. It greatly reduces the level of
protection that is afforded to the right of privacy. The mind that has to be examined is that, not of the reader in
general, but of the person who is affected by the publicity. 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.
125 Despite the weight that must be given to the right to freedom of expression that the press needs if it is to
play its role effectively, I would hold that there was here an infringement of Miss Campbell's right to privacy
that cannot be justified.
Baroness Hale of Richmond (majority view)
127 Even the judges know who Naomi Campbell is. (…)
138 The parties agree that neither right takes precedence over the other. This is consistent with Resolution 1165
(1998) of the Parliamentary Assembly of the Council of Europe, para 11:
"The Assembly reaffirms the importance of everyone's right to privacy, and of the right to freedom of
expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical
order, since they are of equal value."
147 I start, therefore, from the fact--indeed, it is common ground--that all of the information about Miss
Campbell's addiction and attendance at NA which was revealed in the "Daily Mirror" article was both private
and confidential, because it related to an important aspect of Miss Campbell's physical and mental health and
the treatment she was receiving for it. It had also been received from an insider in breach of confidence. That
simple fact has been obscured by the concession properly made on her behalf that the newspaper's
countervailing freedom of expression did serve to justify the publication of some of this information. But the
starting point must be that it was all private and its publication required specific justification. (…)
151 The answer which she herself accepts is that she had presented herself to the public as someone who was
not involved in drugs. It would have been a very good thing if she were not. If other young women do see her
as someone to be admired and emulated, then it is all to the good if she is not addicted to narcotic substances. It
might be questioned why, if a role model has adopted a stance which all would agree is beneficial rather than
detrimental to society, it is so important to reveal that she has feet of clay. But the possession and use of illegal
drugs is a criminal offence and a matter of serious public concern. The press must be free to expose the truth
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and put the record straight.
152 That consideration justified the publication of the fact that, contrary to her previous statements,
Miss Campbell had been involved with illegal drugs. It also justified publication of the fact that she was
trying to do something about it by seeking treatment. It was not necessary for those purposes to publish
any further information, especially if this might jeopardise the continued success of that treatment.
153 The further information includes the fact that she was attending Narcotics Anonymous meetings, the fact
that she had been doing so for some time, and with some regularity, and the photographs of her either arriving
at or leaving the premises where meetings took place. (…)
154 Publishing the photographs contributed both to the revelation and to the harm that it might do. By
themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a
right to one's own image: cf Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591. We have not so far held that
the mere fact of covert photography is sufficient to make the information contained in the photograph
confidential. The activity photographed must be private. If this had been, and had been presented as, a picture
of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes
a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will
obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is
nothing essentially private about that information nor can it be expected to damage her private life. It may not
be a high order of freedom of speech but there is nothing to justify interfering with it. (…)
155 But here the accompanying text made it plain that these photographs were different. They showed her
coming either to or from the NA meeting. They showed her in the company of others, some of whom were
undoubtedly part of the group. They showed the place where the meeting was taking place, which will have
been entirely recognisable to anyone who knew the locality. A picture is "worth a thousand words" because it
adds to the impact of what the words convey; but it also adds to the information given in those words. If
nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place
looked like. In context, it also added to the potential harm, by making her think that she was being followed or
betrayed, and deterring her from going back to the same place again.
156 There was no need to do this.
Lord Carswell
169 In my opinion it is a delicately balanced decision, and the answer to the questions which one must ask is by
no means self-evident. My own conclusion is the same as that reached by Lord Hope and Lady Hale. My
reasons can be expressed in fairly short compass. Publication of the details about the appellant's attendance at
therapy carried out by NA, highlighted by the photographs printed, constituted in my judgment a considerable
intrusion into her private affairs, which was capable of causing substantial distress, and on her evidence did
cause it to her. (…) My noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann, also
emphasised the importance of allowing a proper degree of journalistic margin to the press to deal with a
legitimate story in its own way, without imposing unnecessary shackles on its freedom to publish detail and
photographs which add colour and conviction. I do not minimise these factors, which are part of the legitimate
function of a free press and require to be given proper weight.
170 In my opinion the balance comes down in favour of the appellant on the issues in this appeal. (…) I find it
sufficient to hold that the information contained in categories 3 and 4, allied to the photographs in category 5,
went significantly beyond the revelation that the appellant was a drug addict and was engaged in drug therapy. I
consider that it constituted such an intrusion into the appellant's private affairs that the factors relied upon by
respondents do not suffice to justify publication. I am unable to accept that such publication was necessary to
maintain the newspaper's credibility.
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(5)
Michael Douglas v Hello!, [2005] 3 WLR 881 (Court of Appeal, full trial)
Judgment of the Court, handed down by Lord Phillips of Worth Matravers, MR
52 Baroness Hale of Richmond said [in Campbell v MGM, A.O.] that the Human Rights Act 1998 did not
create any new cause of action between private persons. Nor could the courts invent a new cause of action to
cover types of activity not previously covered. But where there is a cause of action the court, as a public
authority, must act compatibly with both parties' Convention rights.
53 We conclude that, in so far as private information is concerned, we are required to adopt, as the vehicle
for performing such duty as falls on the courts in relation to Convention rights, the cause of action formerly
described as breach of confidence. As to the nature of that duty, it seems to us that sections 2, 3, 6 and 12 of the
Human Rights Act 1998 all point in the same direction. The court should, in so far as it can, develop the action
for breach of confidence in such a manner as will give effect to both article 8 and article 10 rights. In
considering the nature of those rights, account should be taken of the Strasbourg jurisprudence. In particular,
when considering what information should be protected as private pursuant to article 8, it is right to have regard
to the decisions of the European Court of Human Rights. We cannot pretend that we find it satisfactory to be
required to shoehorn within the cause of action of breach of confidence claims for publication of unauthorised
photographs of a private occasion.
102 To summarise our conclusion at this stage: disregarding the effect of the OK! contract, we are satisfied
that the Douglases' claim for invasion of their privacy falls to be determined according to the English law of
confidence. That law, as extended to cover private and personal information, protected information about the
Douglases' wedding.
118 These decisions are of no more than persuasive authority and some of them have not been without
critics. We consider, however, that they reflect the following principles. Where an individual ("the owner") has
at his disposal information which he has created or which is private or personal and to which he can properly
deny access to third parties, and he reasonably intends to
profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of
these matters and who has knowingly obtained the information without authority, will be in breach of duty if he
uses or publishes the information to the detriment of the owner. We have used the term "the owner" loosely.
119 We have concluded that confidential or private information, which is capable of commercial
exploitation but which is only protected by the law of confidence, does not fall to be treated as property that can
be owned and transferred. We shall explain our reasons for this conclusion when we deal with OK!'s claim.
134 The grant to OK! of the right to use the approved photographs was no more than a licence, albeit an
exclusive licence, to exploit commercially those photographs for a nine-month period. This licence did not
carry with it any right to claim, through assignment or otherwise, the benefit of any other confidential
information vested in the Douglases. In Allen & Hanburys Ltd v Generics (UK) Ltd [1986] RPC 203, 246 Lord
Diplock said that a licence "passes no proprietary interest in anything, it only makes an action lawful that would
otherwise have been unlawful".
135 As Jacob J pointed out in Isaac Oren v Red Box Toy Factory Ltd [1999] FSR 785, para 28, some
statutes expressly give an exclusive licensee of intellectual property the right to sue an infringer. The Copyright,
Designs and Patents Act 1988 is an example: see paras 124 and 125 above. In the absence of such a statutory
provision a mere exclusive licence to use authorised photographs of an event does not carry with it the right to
sue a third party for infringement of a right vested in the licensor to object to the publishing of other
photographs of that event.
(6)
Michael Douglas v Hello!, [2007] UKHL 21 (House of Lords)
Lord Hoffmann (majority view)
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124 Is there any reason of public policy why the law of confidence should not protect information of this
form and subject-matter? There is in my opinion no question of creating an "image right" or any other
unorthodox form of intellectual property. The information in this case was capable of being protected, not
because it concerned the Douglases' image any more than because it concerned their private life, but simply
because it was information of commercial value over which the Douglases had sufficient control to enable them
to impose an obligation of confidence. Some may view with distaste a world in which information about the
events of a wedding, which Warren and Brandeis in their famous article on privacy in (1890) 4 Harvard LR 193
regarded as a paradigm private occasion, should be sold in the market in the same way as information about
how to make a better mousetrap. But being a celebrity or publishing a celebrity magazine are lawful trades and
I see no reason why they should be outlawed from such protection as the law of confidence may offer.
125 I therefore think that the Court of Appeal was wrong to reverse the judge on this point.
(7)
David Murray v. Big Pictures (UK) Ltd
Facts
Davis Murray, the claimant, the son of bestseller author J.K. Rowling, was photographed at the age of 2 while
being pushed in a pram by his parents in an open street in Edinburgh. Can he prevent the publication of the
photo?
Sir Anthony Clark, MR
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.
Lehrstuhl Zivilrecht VIII
Prof. Dr. Ohly
Introduction to English Law