Weller and Ors v Associated New
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Tomlinson,Lord Justice Bean |
| Judgment Date | 20 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1176 |
| Docket Number | Case No: A2/2014/2190 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2015 |
[2015] EWCA Civ 1176
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE QUEEN'S BENCH DIVISION
MR JUSTICE DINGEMANS
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Tomlinson
and
Lord Justice Bean
Case No: A2/2014/2190
Spapers Limited
David Sherborne and Julian Santos (instructed by Clintons) for the Claimants/Respondents
Antony White QC and Catrin Evans (instructed by Reynolds Porter Chamberlain LLP) for the Defendant/Appellant
Hearing dates : 27 & 28/11/2015
The claimants are the children of Paul Weller, the well known musician and former member of the "Jam" and "Style Council". Their claim is in respect of an article which was published online on 21 October 2012 by Associated Newspapers Limited, as publishers of the Mail Online. The article was headed "a family day out" and showed seven photographs of Paul Weller and the claimants ("the Photographs").
The Photographs were taken on 16 October 2012 by an unnamed photographer in Santa Monica, Los Angeles, California. They were of Paul Weller and the children out shopping in the street and relaxing in a café. Dylan was aged 16 at the time. The two other children were the twins John Paul and Bowie who were then aged 10 months.
The article was illustrated with seven photographs which showed the faces of Dylan and the twins. The claimants say that the Photographs should have been pixelated. In these proceedings they claim damages for misuse of private information and breach of the Data Protection Act 1998 ("the DPA") and an injunction.
In a reserved judgment given on 16 April 2014, Dingemans J found that the defendant was liable for misuse of private information and/or for breach of the DPA. In a subsequent judgment given on 12 June 2014, he granted an injunction restraining the defendant from further publishing the Photographs which are the subject of this litigation. He also awarded damages of £5,000 to Dylan and £2,500 each to John Paul and Bowie.
With the permission of Laws LJ, the defendant appeals against (i) the finding that the defendant was liable in misuse of private information and for breach of the DPA (although the argument on the latter added nothing to the argument on the former) and (ii) the grant of the injunction. In summary, the defendant's case in relation to (i) is that the judge was wrong to hold that the claimants had a reasonable expectation of privacy in relation to the unpixelated images of their faces contained in the Photographs. Mr White QC submits that the appeal against this holding raises two important issues. The first is whether the publication of an "innocuous" photograph of a child taken in a public street without consent gives rise to a reasonable expectation of privacy in relation to the image shown, merely because the person is identifiable whilst he or she is out and about with other family members, but where nothing inherently private is shown. The second issue is the effect of foreign law on the assessment of reasonable expectation of privacy. This issue arises because the taking and publishing of the Photographs would have been lawful according to the law of California. Before I examine the law and how the judge dealt with the legal issues that he had to determine, I need to set out the relevant facts.
A. THE FACTS
The text of the article is set out at para 6 of the judgment below: [2014] EWHC 1163 (QB). There has been no complaint about any aspect of it. The Photographs are described in detail at paras 7 to 13 of the judgment.
The judge heard evidence from Mr Weller, Hannah Weller (his wife), Claire Moon (his manager and personal assistant) and Dylan. He said that they all gave honest evidence. At para 84, he recorded that Mr Weller "appreciated that the paparazzi and press liked to publish material about him because of what he did for a living, but he still regarded himself as a private person when not performing". He had given interviews over the years and said that on occasions this had included biographical details about him and his family. He had avoided giving in depth interviews about his private life. He responded to questions rather than volunteering information about his family life. He denied promoting his image as a devoted father.
Claire Moon said that he had agreed to do interviews in the past, but it was not something that he enjoyed doing or actively sought. He was essentially a private person despite his success in the music industry. She said that he had refused offers to feature in various magazines. She did not think that it assisted his image to be known as some sort of super dad.
At the time of the trial, Dylan was 17 years of age. Although she had grown up in the UK, she had been living in Los Angeles with her mother for the past 4 years or so. She was still very close to her father, but only saw him on average 3 or 4 times a year when he was touring in the US or when she was on holiday in the UK. She said that her father had always kept her out of the media spotlight and that she had never been to a "red carpet event" or to celebrity parties. When she was about 14 years old, she had joined a modelling agency for a year during which she did one modelling shoot for Teen Vogue. A photograph of her was published in the 24 February 2011 edition of the magazine. Mr Weller said that this was a controlled environment for a photograph to be taken and published. It differed from the environment in which photographs were taken by paparazzi in the street. Dylan had set up a Twitter account in August 2010, but she had not used it and did not know the password. She had started using Instagram about 2 and a half years before the trial. She said that her followers were either direct friends or friends of persons she had known.
Mr Weller said that on 16 October 2012 he became aware of a paparazzo taking photographs when they were in a car park. In response to a request to stop, the photographer said: "no I respect you its fine, they'll pixelate the photographs of the kids". Mr Weller did not at any time give his consent to the taking of the Photographs.
The judge said at para 125 that Mr Weller considered that:
"his children being followed; pictures being taken despite his asking for them not to be taken; photographs being published in a national newspaper without consent and without any attempt to hide or disguise their faces; was completely wrong. He said that just because a father is well known doesn't mean that the children should be…the primary objective in bringing this claim on behalf of the children was to ensure that it never happened again."
The judge also recorded Mr Weller's concerns about the increased security risk created by the publication of the Photographs (para 126). He said that there might be threats when the children were out with nanny, granny or aunty. He had never said anything to give an indication that he would consent to photographs of his children being published in newspapers (para 130). He said that Dylan was "not a model in any meaningful sense" (para 133). There had been no consent to the publication of the Photographs (para 135). He and Hannah Weller had general concerns about security in relation to their children. They had the normal concerns of any parent for the safety and security of their children heightened by the fact that Paul Weller was well known. The main purpose in bringing the proceedings was to attempt to ensure that the children were left alone as they grew up (para 136).
At paras 137 to 144, the judge described the circumstances in which the Photographs became available to the defendant. Elizabeth Hazelton was the deputy UK editor of Mail Online. She said that she noted that the Photographs had been taken in a public place and would have concluded that there was "nothing about them which concerned her in regards to privacy". She had noted from the accompanying caption that the pictures had come from Los Angeles "which would've meant that there were no problems". Mail Online became aware of the Photographs through a picture agency. The agency posted photographs to be purchased and used by the media to, among others, Mail Online. The Photographs were captioned "Paul Weller with twins in LA". The caption said " Legendary British musician Paul Weller and his wife Hannah Andrews and twin sons John Paul and Bowie are spotted out for a walk and a coffee and do some shopping on the 16 th October 2012 in Venice, California". The judge found that Mail Online knew that the Photographs had been taken without consent because of the wording of the caption and the use of the word "spotted". It was not, however, aware of the "harassment" by the photographer of Dylan at the café or the promise made by the photographer to ensure that the children's faces were pixelated in any publication (para 161).
At paras 145 to 147, the judge recorded the defendant's commercial concerns. Martin Clarke (whose evidence the judge accepted) said that Mail Online faced intense competition from global competitors all of which were based in the US who enjoyed the right to relatively unfettered free speech which was enshrined in the US Constitution. Celebrity stories were important to Mail Online "because of the public interest in free speech and because show business or celebrity stories are popular and generate revenue through digital advertising spend which was critical to Mail Online's commercial model."
B. THE LAW
The correct general approach to the question whether a publication...
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