European Court of Human Rights (ECHR) in a case involving Princess Caroline of Monaco.
In
In Princess Caroline, the ECHR went much further. Photos of the princess playing with her children, shopping and dining with a friend had appeared in a German magazine. Under
The Princess Caroline ruling implies that almost any photograph will be deemed to be private information if it depicts an activity that is being undertaken in the course of an individual’s private life, regardless of whether that activity is taking place in public. Thus, article eight of the European Convention of Human Rights, enshrining an individual’s right to respect for their private and family life, could be triggered every time a photo is taken of someone who is not involved in some form of public duty. Such a photo should therefore not be published unless a publisher can establish that the right to freedom of expression codified by article 10 of the Convention tips the scales firmly in his or her favour. However, the argument must be good; he or she will not be able to argue that he/she is exercising the media’s ‘vital role of watchdog’ by reporting details about the private life of an individual who does not exercise official functions.
The ECHR did not give any guidance about what, if any, limits remain, so the
Sir Elton John tried to obtain an injunction preventing the publication of pictures showing him standing with his driver in a
In the Rowling case, a covert, long-lens photograph was published of JK Rowling and her husband pushing their son in a buggy along an
Mr Justice Patten did not think that Princess Caroline could be distinguished on the basis of harassment. So how did he then deal with the conflicting views of the House of Lords and the ECHR?
First, he noted that there was nothing in the photographs that raised any of the special circumstances in
He then considered whether Princess Caroline prevented the publication of any photographs at all, or whether some were still permitted. He ruled that while a person’s private recreation time might now be protected even if it takes place in public, there is still a basic area of innocuous public activity where no right to privacy exists. So, a trip to the shops would not be protected; playing with one’s children in the park probably is. Where children are photographed, if there is a risk that the child’s security might be compromised or if taking the picture causes the child distress, a higher degree of protection will apply and the photograph may breach privacy. However, each case will turn on its facts.
The Rowling decision will not be the end of this issue. At some point, an English privacy case will reach the ECHR and it seems clear that its views are more protective of privacy than the English courts.
Michael Hales is a partner and Micki Wainhouse a trainee solicitor at Nabarro.
