Aaa v Associated Newspapers Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeTHE HON. MRS JUSTICE NICOLA DAVIES DBE,Mrs Justice Nicola Davies
Judgment Date25 July 2012
Neutral Citation[2012] EWHC 2103 (QB)
Docket NumberCase No: TLQ/12/0108

[2012] EWHC 2103 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mrs Justice Nicola Davies DBE (in Private)

Case No: TLQ/12/0108

Between:
Aaa
Claimant
and
Associated Newspapers Ltd
Defendant

Mr James Price QC and Mr William Bennett (instructed by Collyer Bristow LLP) for the Claimant

Mr Desmond Browne QC and Ms Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the Defendant

Hearing dates: 19 to 22 and 25, 26 June 2012

THE HON. MRS JUSTICE NICOLA DAVIES DBE Mrs Justice Nicola Davies

Introduction

1

The claimant, by her litigation friend, brings this action. The following relief is sought:

i) Damages for breach of privacy against the defendant in respect of the behaviour of journalists and photographers acting as its agents between identified dates who laid siege to the claimant's family homes such as to interfere with her family life;

ii) Damages for breach of privacy against the defendant in respect of the publication of her photograph and articles which contained speculation as to the identity of her father. The material was published in articles in print version and on the defendant's website. The photographs and articles are identified in Private Appendix 1;

iii) An injunction to restrain the defendant, by its servants or agents or otherwise howsoever, from further publishing or causing or permitting the publication of information of:

a) the claimant's photograph (including photographs in which her face has been pixilated) or her name or her home address or the name or address of her nursery or the name or address of her school or any particulars reasonably likely to lead to her identification in conjunction with information (including rumours and speculation) concerning the claimant's paternity; and/or

b) the claimant's photograph (including photographs in which her face has been pixilated).

2

The pleaded basis of the claim alleges that between identified dates representing a twelve day period in the summer of 2010 journalists and photographers participated in the following behaviour:

i) The laying siege of the claimant's family home in London (where the claimant lived with her mother). During this period there were usually between two and five journalists and photographers encamped outside the family home during the daytime. Photographers would wait outside the house in parked cars until at least 11pm;

ii) On the day of the publication of the first article, when the claimant's mother and litigation friend left her house, approximately ten reporters and photographers were outside the house. As they walked to and entered her car, the reporters and photographers swarmed around, shouting questions and taking photographs. It was decided to take the claimant to her grandparents' house in Kent, a private security company was hired to assist in removing the claimant. When the claimant was taken from the home she had to be shielded by umbrellas, she was subjected to a barrage of flashing cameras and a highly unpleasant commotion. The claimant was visibly distressed by this incident;

iii) Specific allegations during the entirety of the period include: the persistent ringing of the doorbell, persistent ringing of the claimant's mother's mobile telephone, shouting out from the street to the upstairs window of the family home. The behaviour created an atmosphere of tension and unease in the family home, it caused distress to the claimant's mother and nanny, which in turn caused distress to the claimant.

3

Following publication of the first article by the defendant, solicitors then acting on behalf of the claimant wrote to the defendant complaining about the publication of the photograph, the accompanying article, the breach of the claimant's rights under Article 8 and alleging infringement of her rights pursuant to the Protection from Harassment Act 1997. The removal of the article from the website was requested as was a written undertaking that the defendant would not further infringe any of the claimant's rights by repeat publication of the photographs and statements complained of. The defendant replied disputing the harassment and privacy claim but stating:

"…..without any admission of liability, we have removed the picture from our website. We adhere to the PCC's guidelines and if any further photographs of your client become available we will of course adhere to the PCC Code."

4

In November 2010, Collyer Bristow, different solicitors acting for the claimant, wrote to the editor of one of the defendant's publications in respect of a text which the claimant's mother had received from one of its reporters. The letter stated "She will not hesitate to bring proceedings against you for misuse of private information if you breach her or her daughter's privacy rights." On the day following publication of the eighth article, Collyer Bristow wrote to the defendant. It alleged that the publication demonstrated that the defendant, despite its assurance that it would adhere to the PCC Code, had breached section 6 of the Editors' Code. The thrust of the complaint appears to be directed at the photograph of the claimant. The letter continues:

"The purpose of this letter is to inform you that we have instructed both leading and junior Counsel on behalf of (the claimant) to advise upon the articles you have published regarding our clients since.

Our instructions are to issue a Claim Form on behalf of (the claimant) today. The Claim Form and Particulars of Claim will be served upon you as soon as they have been finalised."

5

The defendant replied stating that without admission of liability the photograph had been removed from its online website and its removal had been requested from external text databases, internet websites. On 3 June 2011 proceedings were served upon the defendant by Collyer Bristow.

6

It is the claimant's case that the key event was the decision of the defendant to publish private information in the first article, the private information being speculation as to the paternity of the claimant. It was the eighth article which the claimant's family regarded as breaching the assurances given in the defendant's solicitor's letter which was the trigger for the issue of proceedings.

7

The photograph which accompanied the eighth article was the one which had been previously published by the defendant. Proceedings have not been issued against any other media organisation. In the period following the publication of the first article and the article published on the preceding day by another newspaper, other newspapers published articles upon the same matter. An article published by another newspaper on the day following the first article, contained a photograph of the claimant (Private Appendix 2). Mr Price QC, on behalf of the claimant, informed the court that if the application for an injunction is successful, that injunction will be served on other media organisations, the thinking behind the proposed action is that it would deter other organisations from printing further photographs or relevant information.

8

The trial of this action was heard in private following an application made on behalf of the claimant pursuant to Article 6 and CPR 39.2(a),(c),(d) and (e). I found that the relevant provisions of CPR 39 were met, it was in the interests of the claimant for the hearing to be held in private.

Breach of privacy by physical intrusion

9

On behalf of the claimant it is accepted that there is no tort which protects the privacy of individuals in all respects. The tort underlying the present action is described as an informational tort in that it protects "the right to control the dissemination of information about one's private life", Campbell v MGN Ltd [2004] 2 AC 457 [51]. The aspects of the claimant's privacy rights which, it is said, are engaged are the following:

i) the child's interests in being free from intrusive media attention, at times when her alleged father's conduct and character attracts media interest.

ii) the child's right to personal development and identity, and personal autonomy. This includes her freedom to grow up and develop her personality and interests without media speculation about her paternity or media discussion of her looks or character or activities and interests in the context of her supposed paternity.

iii) the child and her family's right to personal autonomy as regards the choice of when and how to inform her about her paternity and to engage with her father.

iv) the child and her family's right to control the dissemination of information about her private life, in this case her paternity and, for example, her looks and her hair, the supposed circumstances of her conception.

v) the child and her family's autonomous rights to control the use of her image.

vi) the child's right not to be targeted in order to obtain photographs in a public place for publication, for example, to show her likeness or otherwise to her supposed father.

vii) the child's freedom to live a normal life without the constant fear of press and media intrusion.

10

The defendant's case is unequivocal, English law recognises no common law tort of invasion or breach of privacy, Wainwright v Home Office [2004] 2 AC 406. Lord Hoffmann, delivering a judgment with which the other members of the House of Lords agreed, stated:

"I would reject the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy."

The adoption of a claim for breach of privacy was not necessary in order to comply with Article 8, any existing gaps had been filled by ...

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