The right to RocknRoll in private

Ned RocknRoll – hardly a name that you would choose if you were a shrinking violet. The erstwhile Mr Smith is also a socialite: nephew to tycoon Richard Branson and former husband of an heiress, Eliza Pearson. Add a celebrity wedding to the actress Kate Winslet, and you would think you have a media marriage made in A-list heaven.

But the RocknRoll case[1] underlines that mere newsworthiness is not a free-for-all when it comes to privacy.  The case turned on some old photographs of the semi-nude claimant engaged in what he described as “rather silly, schoolboy-like behaviour” at a private fancy dress party.  In January 2013 Mr RocknRoll obtained an interim injunction restraining The Sun newspaper from publishing the photographs and/or a detailed description of their contents (which remain confidential). 

In granting the relief, Mr Justice Briggs described the claimant’s privacy rights as “powerfully engaged”.[2] Although only a first-instance and interim decision, the judgment is notable in the context of celebrity spouses and partners who are not famous in their own right.  For all Mr RocknRoll’s sudden claim to fame, the judge dubbed him as finding himself “in a temporary blaze of largely reflected publicity”.  In the absence of any contribution to public debate, publication by The Sun would simply “satisfy the interest of its readership in the private peccadilloes of the rich and famous or (in this case) of those associated with them”.[3]

The back story

In July 2010 the claimant attended the 21^st birthday party of his then sister-in-law at her parents’ private estate in West Sussex.  Another guest, James Pope, took a number of photographs, some of which depicted Mr RocknRoll partially naked.  Mr Pope later posted the photographs on Facebook, where (at the time) they could only be viewed by his Facebook friends (around 1,500), but not by the general public. After divorcing his first wife, Mr RocknRoll married Kate Winslet at a private ceremony in New York in December 2012.

The photographs came to the attention of the defendant, News Group Newspapers (NGN), in early January 2013.  NGN notified Mr RocknRoll of its intention to publish the photographs in The Sun newspaper, along with a description of their content.  The claimant separately established that James Pope was the photographer, and that the defendant had access to the photographs following a recent change in Mr Pope’s privacy settings, which made the photographs accessible by the wider public.  Mr RocknRoll obtained an assignment of copyright in the photographs from Mr Pope.

Application for an interim injunction

Mr RocknRoll sought to restrain publication of the photograph and their contents, relying on his privacy rights under Article 8 of the European Convention on Human Rights, as well as copyright. Mr RocknRoll claimed a reasonable expectation of privacy in relation to the photographs, as they were taken at a private party on private premises.  He maintained that neither the photographs nor their content would contribute anything of substance to any public debate if published, and that publication would cause real harm and distress both to him, his new wife and her children.

NGN contended that he had, both during his last marriage and by marrying Ms Winslet, made himself “a public figure in the social sphere” and as such had a restricted expectation of privacy.  NGN submitted that he had waived any rights to privacy in relation to his previous marriage by being paid for related publicity by a national newspaper in 2009.  NGN further argued that the photographs had come into the public domain once posted on Facebook by Mr Pope, and that the photographs contributed to a matter of “legitimate public debate” given the claimant’s conduct shown in the photographs.

The decision

Reasonable expectation of privacy

In considering first whether Mr RocknRoll had a reasonable expectation of privacy, Briggs J found that Mr RocknRoll’s Article 8 rights were “plainly engaged” by NGN’s threat to publish the photographs and a description of their contents.

• First and foremost, the photographs show the claimant in private surroundings with his family and friends, and behaving in a manner in which he would be “entirely unlikely to behave in public”.[4]
• Secondly, the fact that the photographs were taken with the claimant’s consent was irrelevant.   At trial, the defendant was most unlikely to succeed in establishing that: (a) in consenting to the taking of the photographs, the claimant intended to consent  to their publication in a national newspaper; and (b) when posting the photographs in 2010, Mr Pope would have anticipated that they would become accessible by anyone with a Facebook account, let alone a national newspaper.[5]  
• Thirdly, the claimant had not deprived himself of a reasonable expectation of privacy either by being a public figure or by accepting payment from Hello! magazine for publicity about his first marriage.  His employment with Virgin Galactic did not amount to an important role in national affairs.  While he had courted publicity during his previous marriage, it was only on one occasion and he did not enjoy (let alone court) publicity as a prominent member of “the social sphere”.  It was “wholly unrealistic” for the defendant to argue that the claimant’s single courting of publicity during his first marriage waived his right to privacy in relation to whatever thereafter occurred during that marriage, or at the same private premises where the marriage originally took place.  Mr RocknRoll did nothing to seek publicity about his relationship with Ms Winslet, and the press was not even aware of their wedding until some days after it had taken place.  Published pictures taken of the couple do not appear to have been posed, and did not place the claimant “in the public sphere in his own right”. [6]

Besides, as to whether the photographs had come into the public domain, the photographs had now been withdrawn from Mr   Pope’s Facebook account.  There was no evidence to suggest that there had, by that time, been widespread public inspection of the photo albums on Mr Pope’s Facebook page.  It was therefore very unlikely that the defendant could establish at trial that no useful purpose would be achieved by a restraint on publication of the photographs, or that there was no longer anything by way of privacy left to be protected.[7]

On the evidence, then, Mr RocknRoll had a “substantially better than even chance” of establishing at trial that he had a reasonable expectation of privacy in relation to the photographs.[8] 

Balancing Article 8 and Article 10

As to NGN’s right to freedom of expression under Article 10 of the Convention, NGN did not have “anything like a better than even chance” of persuading the court at trial that publication would contribute anything to public debate about matters of genuine public interest.  There was nothing in Mr RocknRoll’s conduct as portrayed in the photographs that would give rise to “any matter of genuine public debate, however widely drawn is the circle within which such matters may genuinely arise”.  The conduct was not unlawful, but, as the claimant publicly admitted himself, “the product of foolishness and immaturity”.[9]

By contrast, there was good reason to suppose that publication would lead to a “grave risk” that Ms Winslet’s children might be subjected to “teasing or ridicule at school about the behaviour of their newly acquired step-father, within a short period after his arrival within their family”, which could be “seriously damaging to the caring relationship” that the claimant seemed to be seeking to establish with them.[10]  Briggs J observed that, even if he had found the balance between the parties’ respective Article 8 and Article 10 rights to be balanced aside from the “risk of harm and distress” to the children, he would have concluded that a real risk of that sort was sufficient to tip the balance in Mr RocknRoll’s favour.[11]  Moreover, the judge saw “nothing disproportionate” in permitting derogation from NGN’s Article 10 rights in this case.[12]

Briggs J concluded that Mr RocknRoll was “more likely than not” to succeed at trial in vindicating his Article 8 rights as against NGN’s Article 10 rights.[13]

Balancing copyright and Article 10

Mr RocknRoll owned the copyright in the photographs in this case.  On the face of it, this gave the claimant an additional ground on which to restrain reproduction and publication of the photographs.  It is clear, however, that copyright injunctions can be refused where they would completely prevent any effective exercise of freedom of expression.[14]

The judge briefly considered that “separate balancing question”.  Suspecting that there is little authority on the subject, the judge accepted that in theory the propensity of a copyright injunction to impinge on a defendant’s Article 10 rights might “occasionally incline the court, on particular facts, to decline the discretionary remedy of an injunction”, and to leave the claimant to a claim in damages, particularly where a claim is pursued for “purely commercial reasons”.  Nonetheless, the current case demonstrated why that would be rare, in that “the claim in copyright would merely prohibit the actual copying of the photographs, rather than the publication of a description in words of their content”.  In the circumstances, an injunction merely to restrain copying of the photographs would constitute “no disproportionate fetter upon the defendant’s Article 10 rights, which could sufficiently, albeit not fully, be vindicated by a description of their contents”.  Accordingly, the judge found a “much better than even chance” of obtaining an injunction to restrain the threatened breach of copyright.[15]

Comment

Mr RocknRoll did not succeed simply because of his modest 15 minutes of fame to date.  The judgment illustrates that celebrity spouses and partners might have a reasonable expectation of privacy long after becoming known to the public – as indeed can celebrities themselves, who do not forgo their privacy rights merely on account of their celebrity.  Further, the decision clarifies that courting publicity is not necessarily fatal to a reasonable expectation of privacy, especially where publicity courted in the past related to a different subject-matter. 

As might be expected in a post-Leveson world, the judge was robust in his analysis of NGN’s motives in publishing the photographs.  In the judge’s view, publication of the photographs or their contents would not add anything “beyond mere titillation”.[16]  The defendant’s public-interest defence was undermined by its very eagerness to publish the photographs as soon after the media reporting of the marriage as possible: that only served to confirm the judge’s conclusion that publication of the photographs or their contents would not contribute to any genuine public debate.[17]

Keith Richards once described rock and roll as “music for the neck downwards”.  But the RocknRoll case will surely be music to celebrities’ ears – and even more so for their significant others.

Eleanor Steynand Juliane Althoff

Associate and Trainee Solicitor, Michael Simkins LLP

Article written for Entertainment Law Review.