AAA v Associated Newspapers – what price a child’s privacy?

What price a child’s privacy? £15,000, apparently – at least according to the AAA case [i].
   
The High Court awarded that sum in damages to the claimant (an infant), after the defendant published an unpixelated photograph of her on three occasions.  She is supposedly fathered by a philandering politician.  She failed, however, in her damages claim for misuse of private information contained in the accompanying articles.  She also failed to obtain an injunction to prevent publication of further articles.
 
Background

The claimant, acting by her litigation friend, brought an action in the High Court for breach of privacy.  She claimed damages for the behaviour of the journalists and photographers, who it was claimed had “laid siege” to her family homes, as well as for the publication of her photograph and the articles, which contained speculation on the identity of her father.  She also sought an injunction to restrain further publication of details reasonably likely to lead to her identification (in conjunction with information concerning her paternity) and/or her photograph.

The “siege” allegedly took place during a 12-day period in the summer of 2010.  According to the claimant, the journalists and photographers had laid siege to her family home in London, eventually forcing the claimant to stay at her grandparents’ house in Kent.  On leaving her London home, she had to be shielded by umbrellas and was subject to a barrage of flashing cameras and commotion, causing her visible distress.  Further allegations were made about persistent ringing of her doorbell, calling her mother’s mobile telephone and shouting up to the upstairs windows of the London home.

An article was published in the defendant’s newspaper.  Solicitors acting for the claimant then wrote to the defendant, alleging breaches of her rights under Article 8 of the European Convention on Human Rights (ECHR) and under the Protection from Harassment Act 1997.  The defendant disputed the claim, but promised to remove the photograph from its website and to adhere to the PCC Code.  Further articles followed, and her photograph was re-published despite the assurance given.  In June 2011, many months after publication, the claimant served proceedings on the defendant. 

Evidence

At the trial, evidence was given for the claimant by her mother, nanny, grandmother and litigation friend.  The defendant’s evidence consisted of four witness statements from the senior news reporter and the newspaper’s Deputy Editor.  The parties’ evidence conflicted on the events concerned. 

In giving judgment, Mrs Justice Nicola Davies found no evidence to suggest that the freelance agency that took the photograph had done so on the defendant’s instructions.  Further, the judge found that the claimant’s mother and nanny were not reliable witnesses, pointing out discrepancies and inaccuracies in their evidence.  The judge also noted that the claimant in Murray v Express Newspapers [ii] (the infant child of J K Rowling) had sued the photographic agency (Big Pictures) as well as the newspaper’s publisher.  This course of action was open to the claimant in the AAA case, but had not been taken: at most, the photographic agency would have known that the defendant may have been interested in obtaining the photograph.

The parties’ submissions

Breach of privacy

The claimant relied on Article 8 of the ECHR, and also the requirement in the public interest exception under the PCC Code, which states: “In cases involving children under 16, editors must demonstrate an exceptional public interest to over ride the normally paramount interest of the child.”  The claimant also relied on the primacy of a child’s interests, as set out in Articles 3 and 16 of the United Nations Convention on Rights of the Child 1989 and Article 24 of the Charter of Fundamental Rights of the European Union 2000.  The judge noted, however, in accordance with the ZH (Tanzania) case [iii], that the primacy of a child’s interests is not a “factor of limitless importance”, even if it “must rank higher than any other”.  Further, as the Court of Appeal held in K v Newsgroup Newspapers [iv], the interests of the child do not have automatic precedence over the Convention rights of others, although the court should accord particular weight to the Article 8 rights of any children likely to be affected by a publication.

As to whether there was a reasonable expectation of privacy, the claimant argued that any discussion about her looks, the circumstances of her conception, and the supposed reaction of her mother and then partner to her looks at birth represented information that a reasonable parent would consider to be private.  The defendant maintained that the claimant’s mother’s conduct and conversations (both at a country weekend party and subsequently in an interview that she gave to a magazine) demonstrated her real attitude towards her private life and the paternity of her child.  At the party, she had supposedly discussed her daughter with friends, but also with another guest whom she had not previously met.  Similarly, in autumn 2010, she gave an interview that was subsequently published containing references to the claimant and speculation as to her paternity. 

Public interest in publication

The defendant accepted the need to demonstrate a public interest.  Its main allegations were that the politician had fathered a child while married to someone else, the claimant’s mother was in another relationship, and the claimant’s mother had been appointed to a post by the politician after the claimant had been conceived (i.e. cronyism). 

The claimant contended that the supposed father’s conduct and character are matters of public interest except to the extent that they are within the purely private sphere, which even prominent public figures retain.  Further, there was no need to discuss the claimant in order to give “full rein” to a discussion of her supposed father’s conduct which serves any public interest.  Finally, as to allegations of cronyism, the public interest could be served without referring to the claimant’s birth. 

The defendant argued that, in addition to the “core facts” of any story, additional facts would inevitably be disclosed to engage readers’ attention.  The defendant also relied on Hutcheson v Newsgroup Newspapers, [v], in which it was noted that developments in privacy law may give rise to “real commercial concerns” in some sections of the media and are a “relevant factor for the court to take into account” insofar as they encourage “the public interest in having a thriving and vigorous newspaper industry, representing all legitimate opinions”.  Further, the defendant believed that the politician had behaved in a reckless manner: it was allegedly the second time that he had had an affair resulting in a pregnancy.  Such recklessness is significant when dealing with a public figure and his fitness for public office. 

Photographs

The claimant relied on Rekols v Greece [vi]: a child’s Article 8 right to privacy can still be infringed even if (a) the child is not aware that the photographs were taken or existed or (b) they do not reveal any private information.  The claimant also relied on Murray, in which similar findings were made.  The defendant submitted that Murray should not be relied on: first, because that decision was made by the Court of Appeal following an application for summary judgment, and secondly, it did not attempt to strike a balance between the claimant’s right to privacy and the publisher’s freedom of expression, as that was an issue left to be determined at trial in that case.

Public domain defence

The claimant relied on the dictum in Douglas v Hello Ltd (No. 3) that “in some circumstances … information may be in the public domain and not qualify for protection as confidential and yet qualify for protection on the grounds of privacy” [vii]. The defendant argued, however, that the magazine article demonstrated the willingness of the claimant’s mother to put such information into the public domain.

Decision

The judge accepted that the claimant’s paternity engaged her right to privacy, but did not regard this (without more) as overriding the competing Article 10 interests involved in any balancing exercise.

The judge found that the claimant’s mother had a reasonable expectation of deciding when to tell the claimant the identity of her father.  The judge was troubled, however, by the mother’s conversations, including at the country weekend party, and the interview given to the magazine.  The judge identified the mother as an “intelligent professional woman” who still chose to speak and act as she did.  The result was to compromise the claimant’s reasonable expectation of privacy.  As established in Murray, the court could take account of the conduct of those responsible for the child’s upbringing.  Here, the mother demonstrated, at the least, ambivalence towards her stated aim in the proceedings.  There was also speculation about the claimant’s paternity in the months before publication, and this would have played a part in hastening the mother’s decision to tell the claimant of the identity of her father. 

In the circumstances, publication of the fact of the claimant’s birth was justified.  In the balance between Article 8 and Article 10, the test required to justify publication was one of “exceptional public interest”.  The judge found that the supposed father’s professional position “speaks for itself”.  As to his private life, he had achieved a level of notoriety as a result of a number of extra-marital affairs.  The fact of such an affair does not entail the publishing of information that a child was conceived.  This was, however, the second such occasion.  That fact went to the issue of recklessness on the part of the supposed father – an issue relevant to his private and professional character and fitness for public office. 

As to the photographs, however, the judge found that, even taking account of the margin of journalistic appreciation, it was not reasonable to publish them.  The articles provided sufficient information, and it was not justified to publish the photographs without the claimant’s parent’s consent.

As to the later articles, the judge did not accept that they were all triggered by the defendant’s original article.  Besides, they added little to the first.  The judge also accepted the defendant’s public domain argument in this respect.

Relief granted

The judge awarded damages of £15,000 for the publication of the photographs. 

The judge took account of Tugendhat J’s comments on quantum in the Spellman case: “If a remedy in damages is to be an effective remedy, then the amount that the court may award must not be subject to too severe a limitation.  Recent settlements in the much publicised phone hacking cases have been reported to be in sums far exceeding what in the past might have been thought to be available to be awarded by the courts.  The sums awarded in the early cases such as Campbell were very low.  It can no longer be assumed that damages at those levels are the limits of the court’s powers.” [viii]   

The judge also noted Eady J’s emphasis in the Mosley case of the need to provide claimants with an “adequate remedy” [ix].   The judge concluded that the award should “reflect” the breach of claimant’s rights and “serve as notice, both as to the present and the future as to how seriously the court regards infringement of a child’s rights”.

The judge refused the claim for an injunction on the basis that, if the claimant had desired to prevent publication of further articles, action should have been taken at a much earlier stage.  Moreover, so much information was in the public domain that an injunction would serve no real purpose. 

Comment

There is nothing novel in the approach taken by the judge in this case, but the decision usefully illustrates several points of practical importance. 

•	Conduct can compromise a claimant’s reasonable expectation of privacy.  A child’s right to privacy may be eroded if a parent chooses to disclose private information, or if information substantially enters the public domain.  In this case, the mother’s voluntary actions and conversations compromised the claimant’s reasonable expectation of privacy on the issue of her paternity.  While that expectation was not eliminated altogether, the weight to be attached to it was “of a lesser degree than would have been the case had nothing been said”.
•	Inevitability of publication can be a relevant factor.  Here, gossip and speculation surrounding the paternity existed outside the circle of friends that the claimant’s mother had confided in well before the publication of the first article.  This would, in any event, have played a part in hastening the mother’s decision to tell the claimant who her father was.  The judge also accepted that, in the circumstances, this story was bound to be published at some point by the press.
•	Delay may also be fatal to injunctive relief.  Here, the claimant only sued “many months” after the first article, and then only chose to sue one media organisation, when many others had also published stories.  That said, it is hoped that the law will not develop in a way that a claimant is disadvantaged by not suing everyone: targeting the primary publisher might be the best and most cost-effective course of action, as well as the most efficient use of the court’s time.
•	Finally, damages in privacy cases may still have little deterrent effect on publishers.  Despite the court’s aim to provide an “adequate remedy” in the AAA case, a damages award in the order of £15,000 will not act as a deterrent in this type of case.  Damages in other jurisdictions of even four times this amount have been insufficient to deter would-be publishers where a photograph is “juicy” enough (as illustrated by the Duchess of Cambridge case).  The courts will need to tackle this issue if they are to protect privacy rights properly in future, especially where there is neither a mandatory requirement on publishers to give advance notice of proposed publication, nor a watertight injunction regime.  In the meantime, there will need to be a substantial increase in the level of damages in privacy cases if damages are to provide a suitable deterrent.  That would also create an intense focus before publication on the actual justification for publication and the strength of the public interest.

Gideon Benaim and Tom Iverson

Gideon represented the claimants in Campbell, Murray and Hutcheson.

Article written for Entertainment Law Review.

[i]	AAA v Associated Newspapers Ltd [2012] EWHC 2103.
[ii]	Murray v Express Newspapers plc [2008] EWCA Civ 446.
[iii]	ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166.
[iv]	[2011] 1 WLR 1827.
[v]	[2012] EMLR 38.
[vi]	[2009] EMLR 16.
[vii]	[2008] 1 AC1.
[viii]	Spellman v Express Newspapers (No. 2) [2012] EWHC 355 QB.
[ix]	Mosley v Newsgroup Newspapers Ltd [2008] EMLR 20.