Image Rights in UK Law

There are legal principles which may assist a claimant who has difficulty in proving loss. One such principle is that difficulty of estimation should not be allowed to deprive the claimant of a remedy, particularly where that difficulty is itself a result of the defendant's wrongdoing. A second principle is that, where the defendant has destroyed or wrongfully prevented or impeded the claimant from adducing relevant evidence, the court will make presumptions in favour of the claimant.

However, in practice, I find that the line between the two stages identified by Jonathan Parker J is not clear cut, and that the analysis has to be an iterative one between them. In particular, the matters that might be raised under the second stage might also be relevant to the question whether the doctrine of restraint of trade is engaged at all.

It will be recalled that the Rooneys had no legal advice at the time of execution. This is all the more important in the light of the judge's finding that, on Proactive's side, a longer term than usual was demanded for the IRRA because it was known that WR was "hot property". The absence of independent legal advice in my judgment deprives the fact that the Rooneys were content with the terms of the IRRA of probative weight on the restraint of trade issue.

I accept the principles identified in those authorities. In publishing the photographs, the rights of the claimant have been breached, any award should reflect this fact 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. This is particularly so in a case when there is such interest in the public persona of the alleged father. To reflect these matters, I assess a total award of damages in the sum of £15,000.

This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. At the same time it is important that this core right protected by Article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications.

I quite see that such an approach may lead to a distinction between the circumstances in which equity affords protection to those who seek to manage their publicity as part of their trade or profession and whose private life is a valuable commodity and those whose is not but I am untroubled by that; the law which protects individual confidences and a law of privacy may protect the latter class and provide no reason to diminish protection for the former.

What appears to me to be clear is that, assuming the change of name to be a material breach of the Agreement, it was a breach which was plainly remediable. If E/A had given the notice required by clause 21.3.1(a) of the Agreement, the Team could have changed the team name back to Etihad Aldar Spyker F1 Team. There is no reason to suppose that this change back would have been prevented by the F1 authorities. No objection was made to the various changes to the chassis name.