We have previously posted on the J.K. Rowling copyright infringement case, taking the opposing side, so it is only fair that we post about this litigated privacy case which Rowling (using her real name Joanne Murray) has now won in the United Kingdom, rightly so in our opinion.
The ruling in the case (David Murray (by his litigation friends Neil Murray and Joanne Murray) v Big Pictures (UK) Ltd  EWCA Civ 446) by the England and Wales Court of Appeal (Civil Division) involves an interpretation of the concept of the reasonable expectation of privacy of children according to Article 8 of the European Convention on Human Rights (ECHR), which provides:
“Article 8 Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home
and his correspondence.
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 in the interests of national security, public safety
or the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others.“
In the case at hand, the Murrays (“Rowlings”) brought an action against the journalistic publication of a covert long lens photograph taken of Rowling and her husband together with their then ca. 19-month old son David as they were walking from their dwelling to a cafe. (David was born on 23 March 2003. The photograph was taken on 8 November 2004. Some sources thus say 19 months while others write 20 months.)
The High Court granted summary judgment against the Rowlings, denying that their child’s right of privacy was infringed by publication of the photograph.
The England and Wales Court of Appeal (Civil Division) has now overturned that decision.
On appeal, the Court of Appeal ruled to the contrary that the case should should go to trial (or be settled), since the challenged publication of the photograph in question without consent was indeed a violation of the reasonably expected privacy right of the child under the clear circumstances of this case (a right which existed regardless of the public fame of one of the parents).
“There have been some fears in recent privacy cases that courts were creating an image right, the right of celebrities to exert control in all circumstances of how their image is captured and used. Sir Anthony [Sir Anthony Clarke MR] said that this was not the aim and would not be the result of this ruling….
The ruling said: “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. […] it seems to us that David may have a reasonable expectation of privacy in circumstances in which his famous mother might not.“
The Court of Appeals stated:
“We do not share the predisposition identified by the judge in  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.
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. [emphasis added by LawPundit]
It is important to note that so to hold does not mean that the child will have, as the judge puts it in , 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 child’s rights to respect for his or her private life under article 8 and the publisher’s rights to freedom of expression under article 10….“
Obviously, based on that discussion, Rowling has won the case and the defendants will have little option but to settle the case in her favor. Moreover, the case will surely be a landmark case in protecting the privacy rights of children, at least in the United Kingdom.
We definitely approve.
Hat tip to Out-Law.com, where interested readers can find more material on the ruling, also concerning how the Rowling privacy ruling bolsters the [Information] Commissioner’s view of data protection law.
See also RangeFinderForum.com
See also Chris Cheesman at AmateurPhotographer.co.uk