AAA v Associated Newspapers Ltd [2012] EWHC 2103 (QB)

Case No TLQ/12/0108

[2012] EWHC 2103 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/07/2012

Before

THE HON. MRS JUSTICE NICOLA DAVIES DBE

Between

AAAClaimant

Associated Newspapers LtdDefendant

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

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

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

Judgment

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”, Campbellv 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 sections 5 and 7 of the Human Rights Act 1998 [34].

[11]In Campbell, the approach of Lord Hoffmann was left untouched. In McKennitt v Ash

[2008] QB 73

, the Court of Appeal confirmed that “there is no English domestic law tort of invasion of privacy” [8]. The defendant contends that this is why the protection of private information has proceeded through the tort of breach of confidence renamed in Campbell as misuse of private information. It follows that any claim for physical intrusion into a person’s life has to be made by reliance on existing and established torts such as harassment, assault, or in exceptional circumstances, intentional infliction of harm. It is of note that when proceedings were originally threatened by the claimant’s first solicitors, harassment pursuant to the Protection of Harassment Act 1997 was alleged. That allegation has formed no part of these proceedings. It is the defendant’s case that this claim for damages is misconceived.

Siege: the facts

[12]The claimant’s mother, her own mother, the litigation friend, and the claimant’s nanny provided witness statements and were called as witnesses on behalf of the claimant. At the time of these events the claimant was less than one year old.

Evidence of the siege: the claimant’s mother

[13]The following account is derived from the witness statements of the claimant’s mother. She first became aware of interest from the media when she spotted a photographer as she was walking the claimant in her pushchair in central London. A photograph was taken on that day, it accompanied the article published fourteen days later in a newspaper not owned by the defendant identified in Private Appendix 2. Nine days before the publication of the first article, the claimant’s mother received a phone call from her mother who told her that a reporter had been to her home in Kent, both women were concerned. The claimant’s mother stated:

“From that moment on, once I had alerted (the nanny), we took steps to protect ourselves from media intrusion. We closed all the windows, curtains and blinds and had to put the lights on inside.”

Later that day, the claimant’s mother and the nanny took the claimant to a local playground. When they were there, the claimant’s mother said that she saw a scruffy man who she thought might be a photographer. She mentioned this to the nanny, as a result they went home, no further trips to the playground took place. It appears that the photograph which accompanied the first article was taken on that day. Neither woman was aware of the taking of the photograph.

[14]During the next two days a number of photographers and reporters were waiting in cars or loitering in the street outside the claimant’s house in central London. On the third day a senior reporter employed by the defendant, called at the house, “The curtains were drawn but I peeked out from the first floor window. I did not answer the door and we all hid at the back of the house until we heard him go away.” Later that day the claimant’s mother received an email from the senior reporter which is set out at paragraph 35. The claimant’s mother did not respond to the email. The senior reporter also visited her office in central London. When the claimant’s mother returned from her office to her home at about 5.00pm on that day, she parked her car and was chased by a reporter along the street and up the stairs to her front door. At about 6.30pm she received a text from the senior reporter which read “[name], please call me back re (name of politician). We are writing a story about him and your daughter. Have emailed you too. (Name) (reporter), (newspaper).” The senior reporter rang the claimant’s mother later that evening but she hung up on him.

[15]The claimant’s mother said that she felt so stressed by the unwanted media attention that she decided to flee London for the weekend with her daughter, the nanny and a work colleague. However, “harassment from the media started up again on Monday (date) with the doorbell ringing very frequently. We were still living with the blinds and curtains closed and the lights on.” Her statement also records that:

“On (date, two days prior to first article), the doorbell rang in incessantly at my home ….”

[16]On the day of the publication of the first article the press intrusion intensified, the house was besieged by reporters and photographers. The atmosphere in the house was terrible, the claimant was confined to the kitchen in the basement. The claimant’s mother was extremely distressed, the claimant picked up on her mother’s mood and was very agitated and distressed. The litigation friend, arrived at the house at about 10.00am. The decision was made to move the claimant and her mother to the home of the claimant’s grandmother in Kent to better protect them from the media in central London. Thereafter, the claimant did not return to London, the claimant’s mother would return in order to carry out her business commitments.

[17]In her evidence to the court it became clear that the claimant’s mother’s memory as to the presence of photographers and journalists outside her house in the eight days prior to publication of the first article was not as reliable as her statements appeared to indicate. When questioned, the claimant’s mother accepted that her evidence as to what was going on outside the house was a combination of what she saw and what she was told by the claimant’s nanny. The essence of her oral evidence was that save for specific instances e.g. the curtailed visit to the playground, communications from the defendant’s senior reporter, she could not be specific as to who was outside her house and when. The blinds of the house were down, the curtains were drawn. She made no record at the time.

[18]The claimant’s mother was asked whether she could challenge that part of the defendant’s senior reporter’s witness statement which stated that on his three visits to her house in central London he spent a total of no more than 20 minutes at the house. She could not. It was put to her that three visits lasting no more than 20 minutes over a period of some ten days was not a siege. Her reply was:

“Perception. We felt we were under siege. You must remember I’m on the phone to my mother, who is telling me about journalists at her home, at the same time as I have emails, calls. Being under siege is a feeling as well as reality. I do not know what’s going on behind my front door if everything – if I’m stuck inside the house. Q: So you are not concerned with the reality, is that what you are saying? A: No. I felt under siege. That was my reality. Q: Regardless of whether there was any real basis for that perception? Is that what you are saying? A: I was made to feel under siege by members of the press.”

Q: So you are not concerned with the reality, is that what you are saying? A: I was made to feel under siege by members of the press.”

Evidence of the siege: the claimant’s nanny

[19]The following is taken from the statement of this witness. In the summer of 2010 she was the claimant’s nanny working Monday to Friday, 7.30am to 7.30pm and staying overnight at the claimant’s house in London on Tuesday and Thursday nights. She first became aware that the claimant and her mother were being stalked by the media nine days prior to publication of the first article when the claimant’s mother told her that her mother had called to say that a reporter had come to her house in Kent. The claimant’s mother told the claimant’s nanny that they needed to protect the claimant and themselves from the media and all windows, curtains and blinds should be closed. The witness remembered the doorbell ringing a couple of times that morning and later in the day, it disturbed the claimant. It was hot in the house because the windows, curtains and blinds were down. The claimant’s nanny repeated the evidence given by the claimant’s mother as to what happened in the playground. They did not return to the playground.

[20]On the following two days there were photographers and reporters outside the claimant’s house. The witness recalled answering the door following the pressing of the bell several times to a man who she believed was the senior reporter of the defendant. She told him to go away and slammed the door in his face. As a result of the claimant’s mother feeling so stressed by the “unwanted media attention” she decided to go out of London on Saturday to stay with friends, the claimant and her nanny went with her.

[21]The witness’ statement records the following:

“The harassment from the media started up again on Monday, [date], with the doorbell ringing very frequently. We were still living with the blinds and curtains closed and the lights on….. On Monday [date] journalists and photographers rang the doorbell at [name of street] many times. I remember peeping out of the window and seeing a small woman on the street watching the house and holding a camera. I do not remember what her hair colour was…..On Tuesday [date], there were journalists and photographers outside the house in [name of street] again. ….. On Wednesday [date], the doorbell rang incessantly at [name of street].…(The claimant’s mother’s) response to the media intrusion was to decide to close the windows, curtains and blinds in the house…. Further, insofar as possible we confined ourselves to rooms that were at the back of the house…..We spent a lot of time sitting on the stairs where we felt we could not be seen.”

[22]When the claimant’s nanny gave evidence her recollection was nothing like as specific as recounted in her witness statement. She said that she could not remember the dates when the media had been outside the house in central London although she correctly identified the month. Initially the witness said that journalists and reporters were outside for three days from the date of the playground visit, there were no reporters or photographers outside the house on the Tuesday and Wednesday of the following week which contradicted her written account. As to evidence in her statement that the landline at the house was ringing frequently, the witness said she could not remember if the telephone had been ringing because she did not hear it.

[23]The claimant’s nanny was a quiet, somewhat shy witness who was visibly uncomfortable giving evidence. English is not her first language but she has been in England for ten years and said that she felt comfortable speaking it. The witness was questioned upon the use of certain words and phrases found in identical sentences or paragraphs in the witness statement of the claimant’s mother. It was suggested to her that these were not the sorts of words or phrases which she would use, for example, “resonate”, “the [claimant’s] routine was impacted negatively”, “encamped”, “very out of sorts”, “we were all wrecked”, the claimant’s mother’s “anxiety levels were off the scale”. Save for “resonate” the witness said that the words or phrases were hers. The witness statement had been written by the claimant’s solicitor following a conversation with her. The witness was asked about the fact that her witness statement contained a reference to “my office” when it was obviously referring to an identical part of the claimant’s mother’s statement which correctly referred to “my office”. The witness insisted that this was her mistake.

[24]The cross-examination of this witness was restrained and sensitive to the difficulties of a woman who demonstrated real loyalty to the family for whom she had worked. That said, its effect was apparent when Mr Price QC, on behalf of the claimant, began his re-examination thus:

“……… let’s just forget your witness statement for a moment, if we may, because what my lady wants to know is what happened in the summer of 2010, just as you remember now ok?”

The result of what was described by Mr Browne QC as the taking of a proof of evidence of this witness was that at its highest, the claimant’s nanny saw reporters and photographers outside the house in central London for three or possibly five days. She saw cameras, heard the doorbell but did not hear the landline ringing in the house.

[25]In the written closing submission on behalf of the claimant, reference was made to the evidence of the claimant’s mother and nanny and what was described as “the drawbacks to the manner in which their evidence was presented, which we accept, and for which we think we should apologise, because it does not make the court’s task easier.” It is clear that what was done by Collyer Bristow, solicitors acting on behalf of the claimant, was to use paragraphs or individual sentences from the statement of the claimant’s mother and use them in the statement of the claimant’s nanny. On 6 June 2012, the claimant’s nanny signed that statement as a statement of truth. I do not accept that the words which originated in the witness statement of the claimant’s mother and which were reproduced in the nanny’s witness statement would have been the words used by this quiet and somewhat diffident witness. I am in no doubt that it was loyalty to the claimant’s family which led the witness to accept words in the draft of the statement which were not her own. I deprecate, in the strongest terms, the actions of a solicitor who presents to a witness for approval a statement which represents words which are not those of the witness. The effect of what has been done is to undermine the evidence of the claimant’s nanny which serves to undermine the evidence of the claimant’s mother who said that she was, in part, reliant on the nanny for reporting what went on outside. Neither woman can be regarded as a reliable witness as to what was going on outside the house in central London for the period commencing on the day after the playground visit up to the date of publication of the first article.

[26]If I were in any doubt as to the inherent unreliability of their evidence, it is graphically demonstrated by one incident. In an unchallenged witness statement, a female staff news reporter employed by the defendant, stated that on the Monday of the week of publication of the first article, she arrived for the evening news shift. She was asked by the news editor and the senior reporter, to go to the claimant’s mother’s address and call to see if the mother had any comment to make on a story that she had had an affair with the politician and had had a daughter. In an email to both the news editor and the senior reporter sent at 00:58 the following day, the female reporter stated that she arrived at the claimant’s mother’s house at 6.40, parked about 100 metres from the house, rang the front door bell, received no answer and could hear a baby crying or making a noise inside the house. The email continues:

“I took a step back from the front door and could see someone who appeared to be the maid or nanny, who [the senior reporter] had earlier described to me, with a baby at the window on the floor above. In case she had not heard me because of the noise made by the baby I waived [sic] to her to try to catch her eye and called up to her. The window was not high above me and so I did not need to shout. Whilst I cannot now recall exactly what I said, I think it would have been words to the effect of “hello, I wonder if I could have a word?”

She did not respond nor did she look at me. I rang the doorbell once more but no one answered the door and I therefore moved away from the house. Shortly afterwards all of the blinds to the windows in the house were pulled down.”

[27]As a matter of fact, the timings contained in the reporter’s email are late afternoon and evening. In her statement, it is recorded that the reporter called the news desk around 9.00pm and was told to come to the office. When this evidence was raised with the claimant’s mother and her nanny by the claimant’s solicitor, a mistake was made as to the time of the visit, it being assumed that it was 6.40am not 6.40pm. The result was that the claimant’s mother incorporated into her statement the female reporter’s account of the alleged incident but based it upon an early morning call. The claimant’s mother was cross-examined upon her recollection of the alleged early morning incident. Suffice it to say that her evidence demonstrated she had no good memory of any such early morning incident. In her statement, the nanny repeats the same account and timings given to her by the claimant’s solicitor and comments upon the alleged incident. Cross-examination of this witness revealed the absence of any reliable memory upon this aspect of the evidence.

Evidence of the siege: the claimant’s grandmother

[28]The reality of the claimant’s case is that the siege was alleged to take place at the claimant’s home in central London. The claimant’s grandmother gave evidence of reporters visiting her home in Kent on five occasions. An unidentified reporter first appeared on a date nine days prior to publication of the first article, he was sent away. Following the visit she rang her daughter to tell her what had occurred. All reporters who approached the claimant’s grandmother after that date identified themselves as being from the defendant’s newspaper which published the first article. It is known that the person who approached her the next day was the defendant’s senior reporter, she told him to go away and he left. A woman approached her four days later, the witness described her as being very polite and respectful, she thought she was an identified journalist from the newspaper. The next day, a young man approached the claimant’s grandmother, he told her he was from the same newspaper, she told him to go away and he did. On the day of publication of the first article, the witness was approached by a man she thought she recognised as a journalist employed by the defendant. An unchallenged witness statement from this person indicated he had no involvement in this matter.

[29]When giving evidence, the claimant’s grandmother said that she was sure the dates of the first and fourth visits were correct. As to exactly when she was approached by the woman and the male journalist she thought she could identify, the witness was less certain. She thought they could have been on the same day. It was the evidence of the claimant’s mother, her grandmother and the litigation friend that the relationship between the claimant’s mother and her own mother is very close, they are constantly on the telephone. I accept that the claimant’s mother would have been fully aware of her own mother’s encounters with reporters and the manner in which she dealt with them.

Evidence of the siege: the litigation friend

[30]The litigation friend could not give first hand evidence as to the events in Kent save for the calling of a local builder following the first visit by a reporter to better secure the door/fencing around the property. His reaction to the first article and photograph was one of shock and distress. What most concerned him was the suggestion as to the paternity of the claimant in what he described as a “highly brazen and offensive manner”. The litigation friend, an experienced solicitor advocate, made an appointment with solicitors specialising in media law and went to the claimant’s home in London. On his arrival at about 10.00am there were about ten reporters and photographers on the opposite side of the street. His arrival was photographed. Within the house the atmosphere was palpable, the curtains and windows were closed despite it being a very hot day, the claimant’s mother was very drawn and tense. It was apparent to him that the claimant could sense that something was amiss and was bewildered and confused by it. The claimant had always been a happy, smiling baby, now she was agitated and crying. The decision was made that it would be in the best interests of the claimant to remove her and her mother from the house to Kent.

[31]At approximately midday, the litigation friend and the claimant’s mother left the house to visit solicitors. As they did so they were repeatedly photographed and pursued to the car, reporters were harassing the claimant’s mother to comment on the paternity of her child. When they got into the claimant’s mother’s car, a van blocked them in, they were surrounded by press taking photographs and asking the claimant’s mother to comment. The claimant’s mother was upset and distressed, the litigation friend found it alarming and extremely dangerous. He said that the press appeared to have a complete disregard for their safety and that of the general public. After a short while they were allowed to leave.

[32]In his witness statement, the litigation friend said they met the solicitors and instructed them, on the claimant’s behalf, to write to various newspapers putting them on notice that:

“We would not hesitate to take legal action to protect [the claimant’s] privacy if they continued to misuse her private information” and requested the newspaper responsible for the first article to take down the offending photograph and give an assurance that “similar photographs of [the claimant] and offensive articles would not be repeated.”

[33]The litigation friend returned to the London house and, with the assistance of a private security firm, removed the claimant. A number of photographers remained outside the house. In order to remove the claimant a hat was placed over her head and an umbrella was used to shield her from the photographers’ view. When the claimant left the home, in the arms of a female member of the security team, the photographers continued to take photographs, despite a request not to do so.

Evidence of the siege: the defendant

[34]Unchallenged statements from four relevant witnesses were before the court. A witness statement from the senior news reporter together with exhibited emails was originally before the court, the defendant decided not to call this witness and did not rely on his statement. The information contained in the respective witness statements can be summarised thus: i) The female news reporter was outside the claimant’s house on the Monday of the week the first article was published between 6.40pm and about 9.00pm. During her time in the street she did not see any other photographers or journalists; ii) A photographer employed by the defendant was instructed to go to the claimant’s house on the day of publication of the first article. He arrived at around 11.00am, there were approximately half a dozen photographers and journalists in the vicinity of the house when he arrived. The witness stood on the pavement on the opposite side of the street to the house, it was his recollection that the other photographers and journalists were also on that pavement. He photographed the arrival of the litigation friend and, later, the claimant when being taken from the house by a member of the security staff. Photographs were taken, no approach was made by any photographer or journalist to the person taking the claimant from the house; iii) The male journalist believed to have been recognised by the claimant’s grandmother denied going to the claimant’s home in London or to the claimant’s grandmother’s home in Kent. He had never sought to make contact with the claimant, her mother or grandparents nor had he instructed anyone so to do; iv) A female freelance photographer working almost exclusively for the defendant, on the day before the publication of the first article, was asked by the newspaper to go to the claimant’s house on the following day. On her arrival at around 8.00am, another photographer and journalist were present, others arrived during the course of the morning bringing the number to approximately six to ten. All stood on the pavement on the opposite side from the house. The witness took photographs of the claimant’s mother as she left the house. She was present when the claimant was removed from the house, she said she would not photograph the child without the parent’s consent. She was not asked by the newspaper to take photographs of the claimant.

[35]The two emails sent by the senior reporter to the claimant’s mother were accepted by her to have been sent. The first is sent two days after the playground visit, it reads:

“Hi [name], I tried to speak to you earlier but you seemed busy. Just to clarify, I am researching a story that involves you, [the politician] and your daughter, [name]. I know that your ex-boyfriend [name] is not [name] father – he has told me so – and understands [name] is. I’m sure this is a matter it will be easy for you to resolve, and I await your comment, preferably in a phone call to the below mobile number. Many thanks, Yours sincerely [name] (reporter) ……”

Many thanks, Yours sincerely [name] (reporter) ……”

[36]The second email was sent by the senior reporter to the claimant’s mother on the day of publication of the first article at 14:40, it reads:

“Hi [name] – I know you have not taken the opportunity to reply to my questions before, but hoped you were aware of our story about you and [the politician] in today’s paper. Please call me with any observations, or if you would like a chance to tell the whole story in your own words. Many thanks, yours sincerely [name] (reporter) ….” [name] (reporter) ….”

[37]The Deputy Editor of the defendant’s newspaper which published the first article, provided a witness statement and gave evidence to the court. He said that a freelance words and picture agency which supplies many papers and magazines, was the source of the story which appeared in the first article. Nine days prior to the publication of the first article the agency had supplied to the newspaper’s picture desk information about the characters involved in the story and the photograph of the claimant. The picture editor took the tip, passed it to the newspaper’s news desk and to the reporters to investigate. The original memo from the freelance agency identified all the characters involved in the story including the claimant, her mother, her alleged father and the claimant’s mother’s ex-boyfriend. According to the witness, the freelance agency remained at the location of the claimant’s mother’s home over the next few days following the giving of the tip, not on the commission of his newspaper but because it was the agency’s story. The newspaper would pay the agency for the tip and any material published, be it quotes or photographs. The witness could not say how long the agency would have been at the location, he thought it likely they would have been there for several days. The agency would have been working for themselves in the hope of getting the maximum benefit from it.

[38]The witness was asked about the information in the first article. He said that some of it came from the original tip, a great deal did not. In the days between the tip and publication, the defendant’s journalists were investigating the background to the story, attempting to talk to people who knew the claimant’s mother’s ex-boyfriend, members of their family and associates. On the day before publication, another newspaper published a story which contained information which was included in the first article. The first article was a combination of the original tip from the freelance agency, information from the previous day’s article and information gleaned by journalists employed by the defendant’s newspaper in the days prior to publication.

[39]The witness accepted that in the days following the original tip, the agency were consulting with the senior reporter but maintained that they were doing so as a freelance agency. He said that his newspaper knew that two other newspapers, which he identified, were aware of the story and were also working on it. It is possible that they could have spoken to the freelance agency.

Assessment of the evidence

[40]In their closing submissions, counsel on behalf of the claimant separated the “siege” into three parts or periods: i) The curtailment of the visit to the playground by reason of the claimant’s mother spotting a person described as a scruffy man. It is said that this was targeting of the claimant for photographs for at least two days by the freelance agency who were working hand in hand with the defendant’s newspaper; ii) The presence of the freelance agency at the address of the claimant’s mother as part of the “stakeout” for a number of days thereafter and possibly right up to the day of publication of the first article; iii) The publication of the first article which led to an increase of up to nine or ten reporters and photographers including two photographers from the defendant’s newspaper outside the claimant’s mother’s house. As regards the freelance agency it is not a question of the defendant being vicariously liable for a tort committed by them but of the newspaper being closely involved in the targeting of the claimant which led directly to the publication of the first article.

First period

[41]The photograph of the claimant and her mother which accompanied the first article was taken by the freelance agency prior to the giving of the tip to the defendant’s newspaper. There is no evidence to suggest that the freelance agency took the photograph on the instructions of the newspaper. The unchallenged evidence is that the newspaper was first alerted to the story by the tip from the agency which included the photograph and information. As to the evidence of the claimant’s mother that they left the playground because of the presence of a scruffy male who she thought could be a photographer: it would be no more than speculation to identify that individual as a member of the same agency particularly as a photograph of the claimant was taken some four days earlier which was subsequently published by a different newspaper (Private Appendix 2). There is no evidence upon which this court could find that the defendant’s newspaper took, or instructed any person to take, the photograph of the claimant which it subsequently published.

Second period

[42]In assessing the responsibility of the defendant for the alleged siege outside the London house, I am concerned with the reality of the situation. For the reasons identified I do not regard the claimant’s mother or her nanny as reliable witnesses as to events outside the house during this period. The evidence which each gave has little probative value as to who was outside on any given day. In my view two points are significant: i) As a result of the phone call from her mother relaying the fact that a reporter had called at her home in Kent, the claimant’s mother closed the curtains, blinds and windows in her house. These actions preceded any approach by an employee of the defendant; ii) The unchallenged evidence of the female news reporter is that when she attended the house on the Monday of the week of publication of the first article the windows and blinds were not closed. It was only after she was observed that this action was taken. This is inconsistent with the account of the claimant’s mother and her nanny as to the state of the curtains and blinds in the days following the claimant’s grandmother’s phone call.

[43]The evidence contained in the unchallenged witness statements or emails of the employees of the defendant does not constitute evidence of a sustained presence by its employees or agents outside the claimant’s mother’s house in London. The evidence of the relationship between the defendant’s newspaper and the agency provides no proper basis for a finding that the agency was at the material time acting as the agent of the defendant. In my view, the role of the agency would be that of an independent contractor. It is difficult to see how the presence of unidentified individuals at unspecified times can be the legal responsibility of the defendant still less provide the evidential basis of a finding that in law they were the agents of the defendant.

[44]Of itself, the factual evidence cannot be said to represent a siege by the employees or agents of the defendant. However, that is not the end of the matter insofar as the claimant’s case is concerned. The claimant places reliance upon the authority of Murray v Express Newspapers PLC & another

[2008] EWCA Civ 446

. In particular, at [57] where it was stated by Sir Anthony Clarke MR, as he then was:

“It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child…..”

It is the “targeting” of the claimant which is relied upon.

[45]In Murray the claimant sued the photographic agency which had taken a series of covert photographs and the publisher of the photographs. In this case, the agency has not been sued. It is a freelance agency which supplies other magazines and papers. In its Defence dated 27 July 2011, the defendant pleaded that it bought the photograph from the agency which it identified. It admitted that it had published the photograph on the front page of its newspaper which contained the first article. It was at all times open to the claimant to sue the agency, this course was not taken.

[46]The highest the claimant’s case can be put is that the freelance agency would have known that the defendant’s newspaper was or was likely to be interested in the obtaining of photographs, there was communication with the senior male reporter during this time. There is no evidence of any instructions by the newspaper to take photographs, still less to “target” the claimant.

[47]For a period of some two weeks prior to the publication of the first article, it is undisputed that other media organisations were interested in the story, in particular two national newspapers and a London paper. On the day prior to publication of the first article another newspaper published an article directed at the politician, it referred to his friendship with the claimant’s mother. Two days later, the article identified in Private Appendix 2 was published. In my view, there is force in the defence submission that this was a story which was going to be published, the only question was when and by whom. Such targeting as may have taken place had already begun. To hold the defendant solely responsible for the same is to ignore the evidence and common sense.

Third period

[48]By the morning of the publication of the first article, two national newspapers had published a story relating to the politician which included information relating to the claimant’s mother. Within 24 hours a third national newspaper had published a story similar to the defendant’s first article, using a photograph taken 14 days earlier. Given the prior interest of other newspapers, it would be neither fair nor safe to attribute the presence of unidentified photographers or reporters to the publication of one article in the defendant’s newspaper.

[49]The paragraph [57] in Murray relied upon by the claimant refers to it being “…subject to the facts of the particular case.” On the particular facts of this case I do not find the claimant’s allegation of a siege for which the defendant is responsible to be made out. Publication of information and photographs Claimant’s case Misuse of private information

Publication of information and photographs

[50]The “private information” identified in the Particulars of Claim is information or speculation about the claimant’s paternity. It is the wish of the claimant’s mother to control the release of that information, the litigation friend is of the same view.

[51]The claimant contends that the sole reason for the defendant’s interest in her was the fame and position of her supposed father. The claimant has no public persona of any kind as yet, information as to her identity and image are aspects of her private life. No such information would be published in a national newspaper in the case of an “ordinary” child, that is one not subject to media interest because of the fame and position of her suggested father.

[52]A breach of the claimant’s Article 8 rights is asserted, said to have been caused by the publication of private information. In the event that the court finds Article 8 to be engaged, the issue is whether the claimant has a reasonable or legitimate expectation of privacy in respect of the information, Campbell v MGN

[2004] AC 457

at [21]. A claim for misuse of private information engages the defendant’s Article 10 right to freedom of expression, there is a public interest in freedom of expression itself and the existence of a diverse and vigorous press of which account must be taken as well as any specific public interest in the article complained of, A v B Plc

[2003] QB 195

. Human Rights Act 1998 Schedule 1 Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

[53]Guidance as to the approach of the court was given by the House of Lords in Re S (A Child) (Identifications: Restrictions on Publication)

[2005] 1AC 593

, Lord Steyn at [17] stated that where both Article 8 and Article 10 rights are involved:

“(i) neither Article as such has precedence over the other (ii) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; (iii) the justification for interfering with or restricting each right must be taken into account; (iv) finally, the proportionality test – or “ultimate balancing test” – must be applied to each.”

Section 12(4) of the Act states:

“(4) The court must have particular regard to the importance of the Convention rights to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to – (a) the extent to which – (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.” (a) the extent to which – (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.”

[54]The relevant code is the Press Complaints Commission (PCC) Editors’ Code of Practice. Clause 6 of the Code concerns children. Paragraph (i) will become relevant when the claimant is in school, paragraph (ii) relates to the interviewing or photographing of a child under the age of 16, paragraph (v) states “editors must not use the fame, notoriety or position of the parent or guardian as sole justification for publishing details of a child’s private life.” Clause 6 is one of the clauses to which the public interest section of the Code may be applied. Paragraph (vi) of that section states:

“In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child.”

[55]In Douglas v Hello

[2001] QB 967

at [92]-[95] Brooke LJ identified the need of the court to pay particular regard to any breach of the rules where the court is concerned with issues of freedom of expression especially where none of the public interest claims set out is asserted.

[56]The guidelines to the Code are set out in the Editors’ Codebook. The 2009 version of the Code states:

“The Code goes to exceptional lengths to safeguard children by raising the thresholds on disclosure and defining tightly the circumstances in which press coverage would be legitimate. For the most part, this applies up the age of 16 – but the requirement that they should be free from unnecessary intrusion at school provides a measure of protection into the sixth form….. The welfare of the child includes the effect publication might have……. Children of the famous: The rules apply equally to children of parents from all walks of life.”

The 2012 Codebook includes the following:

“Public interest: Although the Code makes provision for a public interest exception in cases involving children under 16, the bar is raised very high. Editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child. The Commission has accepted in theory that situations could arise where “the scale and gravity of the circumstances” would allow material to be published without consent – but it is yet to find one in practice….. Pictures which do not need consent: However, not all pictures of children need consent – only those that involve the welfare of the child, or which are taken in a private place. The PCC has ruled that mere publication of a child’s image cannot breach the Code when it is taken in a public place and is unaccompanied by any private details or materials that might embarrass or inconvenience the child, which is particularly unlikely in the case of babies or very young children. A magazine picture of a toddler in a pushchair in a public street was acceptable as it was an innocuous image devoid of personal details other than a forename. (Donald v Hello Magazine…)”

[57]On behalf of the claimant reliance is placed upon the primacy of a child’s interests. The United Nations Convention on Rights of the Child 1989 provides: Article 3:

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article.16:

“1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation. 2. The child has the right to the protection of the law against such interference or attacks.”

[58]The Charter of Fundamental Rights of the European Union 2000 Article 24:

“(2) In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.”

[59]In Neulinger v Switzerland

(2010) 28 BHRC 706

, the ECtHR stated:

“131. The Convention cannot be interpreted in the vacuum but must be interpreted in harmony with the general principles of national law. Account should be taken……Of ‘Any relevant rules of international law applicable in the relations between the parties’ and in particular the rules concerning the international protection of human rights. 135…There is currently a broad consensus – including international law – in support of the idea that in all decisions concerning children, their best interests must be paramount.”

[60]In ZH (Tanzania) v Secretary of State for the Home Department

[2011] 2 AC 166

at [46] Lord Kerr JSC stated:

“It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly say that a certain cause, that cause should be followed, unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interest should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.”

[61]In K v Newsgroup Newspapers

[2011] 1 WLR 1827

at [19] the Court of Appeal described this as the proper approach in the context of an application for a privacy injunction. It said that the interests of the child do not have an automatic precedence over the Convention rights of others, but that the court should accord particular weight to the Article 8 rights of any children likely to be affected by a publication. At [23] the court, following the approach of the ECtHR in Von Hannover v Germany

(2005) 40 EHRR1

, said that the decisive factor is the contribution the published information will make to a debate of general interest.

Misuse of photographs

[62]In Rekols v Greece [2009] EMLR 16, the ECtHR stated that neither the child’s lack of awareness of the taking or the existence of photographs, nor the fact that they reveal no private information (other than what the baby looked like), nor anything potentially embarrassing, prevented there being an infringement of the child’s Article 8 right of privacy. Further, the claimant contends that the taking and retention of photographs without consent has the result that: “…an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image” [40]. These observations are relied upon by the claimant not merely as to concerns of the past or future takings and use of photographs of the claimant but also as regards her privacy right in information or speculation concerning her paternity and - particularly in that connection – what she looks like, where her interests lie and the alleged circumstances of her conception.

[63]The claimant places particular reliance upon the authority of Murray, proceedingswhich resulted from the covert taking of a photograph of the 19 month old son of the author J. K. Rowling without the knowledge or consent of the child’s parents. The action was brought by the child’s parents on his behalf on the ground that he was entitled to respect for his private life pursuant to Article 8. Damages were claimed against a newspaper publisher and a photographic agency on the factual basis that the agency had taken, retained and supplied and the newspaper publisher had published, private and confidential information contained in a photograph in respect of which he had a reasonable and legitimate expectation of privacy. The newspaper’s publisher settled the proceedings. On an application by the photographic agency based upon the assumption that the pleaded facts were true, the judge, at first instance, struck out the claim and gave summary judgment for the photographic agency. The claimant appealed to the Court of Appeal. Sir Anthony Clarke MR, as he then was, gave the judgment of the court. At [12] the opinion was expressed that it was of some importance that the action was brought only on behalf of the child and not on the parent’s behalf. At [14] it was stated that a child:

“may have a reasonable expectation of privacy in circumstances in which his famous mother might not. In our judgment the question in the action is whether there was an infringement of David’s rights under Article 8, not whether there was an infringement of the parent’s right under it.”

At [27] reference was made to the decision of McKennitt v Ash

[2008] QB 73

in which the court had identified two key questions which must be answered in a case where the complaint is of the wrongful publication of private information:

“They are first, whether the information is private in the sense it is in principle protected by article 8 (i.e. such that Article 8 is in principle engaged) and, secondly, if so, whether in all the circumstances the interests of the owner of the information must yield to the freedom of expression conferred on the publisher by article 10.”

Referring to the authority of Campbell, it was stated [35,36]:

“The first question is whether there is a reasonable expectation of privacy. This is of course an objective question.………As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.”

The court recognised that the position of a child is somewhat different from that of an adult, quoting from the original judgment at [37]:

“…The question whether a child in any particular circumstances has a reasonable expectation of privacy must be determined by the court taking an objective view of that matter including the reasonable expectations of his parents in those circumstances as to whether their children’s lives in a public place should remain private. Ultimately it will be a matter of judgment for the court with every case depending on its own facts…the court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing.”

At [45] reference was made to Clause 6 of the PCC’s Editors’ Code of Practice and at [47] the court stated:

“…if a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent. In our opinion it is at least arguable that a child of ‘ordinary’ parents could reasonably expect that the press would not target him and not publish photographs of him. The same is true of David, especially since on the alleged facts here the photograph would not have been taken or published if he had not been the son of J. K. Rowling.”

Finally, at [58] it was stated:

“It is important to note that so to hold does not mean that the child will have….a guarantee of privacy. To hold that the child has a reasonable expectation of privacy is only the first step. Then comes the balance which must be struck between the child’s rights to respect for his or her private life under Article 8 and the publisher’s rights to freedom of expression under Article 10.”

Reasonable expectation of privacy

[64]The claimant relies on the question identified by the Court of Appeal in Murray, namely what, seen through the parents’ eyes in the case of a young child, a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity. Discussion of the claimant’s looks, the supposed circumstances of her conception, the alleged reaction of her mother’s then partner to her looks at birth and other information regarding her character, interests and activities is information that the reasonable parent would consider to be private. A newspaper would not publish discussion of this nature if it was about an ordinary person rather than the supposed child of a public figure.

[65]As to the issue of the identity or speculation about the identity of the claimant’s father, it is said that even in the case of a normal family where the father lives with them and is acknowledged as the father, there would be no justification for a newspaper to discuss the child’s paternity. If such an issue or speculation arose from the fame or position of the father pursuant to the Editors’ Code, that is a reason against publication. Therefore, either there is a public interest and flowing from it justification for publication or there is not. If there is not, the information is protected.

[66]Further, in the circumstances of this case where the child’s paternity is being kept private by her mother and family, it is submitted that this is strongly within the realm of private and family life for which Article 8 requires respect. It is described as “a classic example of information as regards which the individual must be allowed to exercise personal autonomy, and in the case of a small child, in which autonomy is exercised on its behalf by its responsible parent.” Reliance was placed upon the words of Tugendhat J in JIH v Newsgroup Newspapers Ltd [2011] EMLR 9 at [58]:

“It is important to bear in mind what privacy injunctions are intended to achieve. In some privacy cases the information sought to be protected will be truly secret. One example may be the paternity of a child where the mother has successfully withheld that information…”

[67]On behalf of the claimant it is submitted that it is entirely reasonable for the claimant’s mother to wish to deal with the issue of paternity in her own way, and in her own time considering what is described as the child’s best interests with the help, if necessary, of close family members and/or specialist advice. If that is right, then it is said the autonomous right must be protected by law.

[68]The claimant also relies on the authorities of King v Sunday Newspapers [2011] NICA 8 and SKA and PLM v PRH and persons unknown

[2012] EWHC 766 (QB)

as recognition by the courts of the reasonable expectation of privacy or details relating to the child and the importance of autonomy in regard to disclosure of the fact of paternity.

Public interest

[69]The public interest element of this case relates to the person in respect of whom there is speculation as to whether or not he is the father of the claimant. He is an elected politician. On behalf of the claimant it is accepted that by reason of his role, the man’s conduct and character are matters of public interest except insofar as they are within the purely private sphere which even prominent public figures retain. As neither this man nor the claimant’s mother are claimants, it is accepted that this action has nothing to do with protecting their private lives or reputations, if the defendant wishes to discuss such matters in its newspaper nothing in this action will prevent or prohibit it.

[70]To justify intrusion into the private life of the claimant it is said that the defendant must demonstrate “an exceptional public interest to override the normal paramount interest of the child” Clause 6 Para vi PCC Editors’ Code of Practice. It is the claimant’s case that there is no need to discuss her or her paternity in order to give what is described as “full rein” to discussion of any other aspect of her supposed father’s conduct which serves any public interest. Her birth is not relevant to discussion of this man’s adulterous liaisons or any particular adulterous liaison. The fact that a child may have resulted from his alleged conduct adds nothing to any debate of general interest about his conduct.

[71]The defendant’s first and subsequent articles do not need to refer to the claimant’s birth as evidence of the liaison having taken place. The suggestion that paternity can be discerned from street photographs of the claimant is described as “absurd”. If it could be, it is said it would merely make all the more important that any picture should be heavily pixelated. In any event the information about the alleged affair comes from a “friend” of the claimant’s mother. There is no suggestion that the supposed father has mistreated the claimant or her mother or refused to take responsibility for the child in a manner which might reflect on his conduct.

[72]As to the defendant’s contention that the articles complained of contained material of significant public interest, namely that the politician was conducting an affair with the claimant’s mother at the time she was appointed by him as an unpaid fundraiser to a project to which her then partner gave money, thus, suggesting cronyism or nepotism. Any public interest in the story can be fully served without the necessity to refer to the claimant’s subsequent birth which is immaterial to this story.

Public domain and the fade factor

[73]As to the defendant’s public domain argument, the claimant relies upon the fact that the article published by a different newspaper on the day before the first article made no reference to the claimant. Any publicity concerning the claimant and her paternity was sparked by the first article and the defendant’s subsequent articles. A principal purpose of this action is to provide proper protection for the claimant as she grows up and goes to school. Relevant to this is what is known as the “fade factor”, namely that what people have read in newspapers or seen on television screens fades in the memory. If an injunction is granted against the defendant and is then served on other news media, it is the belief of those who act on behalf of the claimant that it is likely to be observed. The aim of those who represent the claimant is that the fade factor should operate.

[74]The claimant accepts that the concept of information being in the public domain tends to operate quite differently in relation to private information and in relation to confidential information such as State or trade secrets. As to the latter, the principle was stated by Lord Goff of Chieveley in A-G v Guardian Newspapers Ltd (No.2)

[1991] 1 AC 109

at [282] where he referred to the limiting principles of confidentiality:

“The first limiting principle (which is rather an expression of the scope of the duty) is…..the principle of confidentiality only applied to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general principle, the principle of confidentiality can have no application to it.”

[75]On behalf of the claimant it is said that the interests protected by privacy and confidentiality are different, privacy focusing on human autonomy and dignity with the result identified by Lord Nicholls in Douglas v Hello Ltd (No.3)

[2008] 1 AC1

at [225]: “In some instances….information may be in the public domain and not qualify for protection as confidential and yet qualify for protection on the grounds of privacy. Privacy can be invaded by further publication of information or photographs already disclosed to the public…This distinction is recognised by the Law Commission on its report on Breaches Confidence”.

[76]The claimants accept there may be cases in which as the Court of Appeal said in Douglas v Hello

[2006] QB 125

at [105]:

“Once intimate personal information about a celebrity’s private life has been widely published it may serve no useful purpose to prohibit further publication.”

[77]It is submitted on behalf of the claimant that in a case such as this, the key lies in the question whether there is any useful purpose to be served by prohibition of further application. What is said is that further publication could still cause harm, in particular, to the claimant’s dignity and feelings. Defendant’s case The defendant’s decision to publish the first article and photograph

Defendant’s case

[78]The evidence upon this was given by the Deputy Editor of the defendant newspaper. The witness was duty editor for part of the day prior to publication and one of the senior editors on the day of publication. His involvement was to consider what had been published by another newspaper in an article the day before the first article was published, what material had been made available to the defendant, to follow up and improve upon the story. The witness described the decision to publish the story and the photograph as a “collegiate decision” taken by himself, the editor and the senior news executive with reference to their own internal legal advisors.

[79]Prior to publication there were a number of discussions as to how the material should be used and whether it was appropriate to use the photograph. The witness said that as the story involved a child, considerable consideration is given to the interests of the child and the likely impact the story might have upon the child. That would be weighed against the other issues in relation to what is relevant. The witness accepted that in publishing, the defendant was required to establish a public interest in order to justify publication of the picture. The view was taken that less justification of the story was required as much had been published in the article which had appeared in another newspaper that day. As to the age of the child, the witness said that where the infant was very young, it is accepted that the infant is less likely to suffer distress or consequences from the publication of a photograph as opposed to a child who is perhaps eight or ten.

[80]The central allegation was that the politician had fathered a child with the claimant’s mother at a time when he was married to somebody else, when the claimant’s mother was in a relationship with another person and, shortly after conception, the claimant’s mother had received the benefit of a post under the auspices of the politician’s appointment. The fact of the claimant’s mother holding the post added to the weight of public interest. Without it the story would have been published but it would have been a closer call. The approach was based upon the merits of the information and the photograph in the context of the story, balanced against the use of the child’s photograph and what consequences there might be for the child if the picture were to be published.

[81]The witness said that the additional element in this particular case is the charge levelled against the politician, that of recklessness. It is possible to have an extramarital affair and ensure there is no child. Extreme recklessness of this type was already on the politician’s record, a previous affair which resulted in a pregnancy. The story appeared to suggest that history was repeating itself. Explaining the child’s part in the story and demonstrating that the child looked like the politician was important. It was important to show there had been recklessness, not merely philandering, adultery and betrayal of his wife by the politician. Recklessness is of importance when dealing with the character of a public figure and his fitness for office.

[82]The considerations debated by the editorial team prior to publication were summarised in the defendant’s closing submissions as follows: i) the child was too young to know what was being said about her; ii) the circumstances in which the photograph had been taken had not involved any cause of distress; iii) this was another example of the politician’s recklessness in relation to an extramarital affair which had resulted in a woman becoming pregnant, and in this case, having a child. iv) demonstrating that the child looked like the politician was important; v) there was a public interest in an allegation of cronyism as the claimant’s mother had been appointed to a post by the politician.

[83]Balancing all these factors, the decision was made to publish. It is common ground that no consent was obtained for the publication of the claimant’s photograph.

Publication of article and photograph 3 February 2011

[84]The witness was also involved in the decision to publish the eighth article. His memory of the meeting prior to publication was that it was similar to the meetings prior to the first article save that there were fewer people and a briefer conversation. On the day prior to the publication of the eighth article, a newspaper had published an exclusive interview with the claimant’s mother’s ex-boyfriend. The piece was written by a well respected, experienced, serious journalist. In that article, the former boyfriend had provided details which had not previously been known. The witness said that the relevance of the child to the story was the same as it had been at the time of the first article. In the ensuing seven or eight months, the question of the paternity of the child had remained unresolved. The politician had continued with his public role. These matters, relating to his public and private life, his recklessness or otherwise remained unanswered. They were as relevant as they had been when the article was first published. The discussion centred upon whether anything had changed to remove the justifications for publishing the first article. Nothing had changed. As the child was now older, the chances of her being recognised, as the child in the original photograph, were slightly reduced. As to the publication of the child’s photograph, with those of the politician and the ex-boyfriend, it was said to be left open to the public to assess the credibility of the ex-boyfriend who, it could be said, is a bitter man and compare the photographs of the child with those of both men to see if it would assist them to better understand whether what was being said by the ex-boyfriend was true. Misuse of private information Reasonable expectation of privacy

Misuse of private information

[85]The defendant contends that whether or not a person has a reasonable expectation of privacy in respect of certain information depends on all the circumstances of the case, including the public position and role of the claimant; what is already in the public domain and what information about himself or herself the claimant has put in the public domain. It is a fact-sensitive exercise, Murray [36]. Individuals holding public office should expect their conduct to be closely scrutinised. In Saaristo v Finland (184/06) unreported October 12, 2010 (ECtHR) the European Court stated: “The limits of permissible criticism are wider as regards politicians than as regards a private individual” [59], also Trimingham v Associated Newspapers Ltd

[2012] EWHC 1296 (QB)

[86]The concept of private life covers “personal information which individuals can legitimately expect should not be published”, Saaristo at [61]. Elucidating this concept in OPQ v BJM [2011] EMLR 23 Eady J quoted from the European Courts judgment in Ben Said v UK

(2001) 33 EHRR 10

at [47]: “Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of a personal sphere protected by Article 8…Article 8 protects the right to identity and personal development, and the right to establish and develop relations with other human being in the outside world. The preservation of mental stability is in that context an indispensable pre-condition to effective enjoyment of the right to respect for private life”.

[87]There is a threshold of seriousness before Article 8 is engaged, McKennitt [12] citing Lord Walker in M v Secretary of State for Works and Pensions

[2006] 2 AC 91

at [83]. Article 8 is not a guarantee of a comfortable life or a certain standard of living.

[88]When considering whether privacy attaches to information about relationships, a distinction has been drawn between information as to the mere existence of relationship, whether that be a family relationship or one based on friendship, business or sex and information describing the nature of that relationship or the communications or actions of the parties. The courts have made clear that the mere fact of the relationship is not usually a private matter, Trimingham at [285] where Tugendhat J relied on three recent Court of Appeal cases.

[89]The defendant does not accept the claimant’s submission that information about paternity is “par excellence” within the realm of private and family life. It is contended that public policy does not recognise the identity of a child’s father to be information that one or both parents can chose to keep secret. Reliance is placed upon the Welfare Reform Act 2009, section 56 (not yet in force) which will require an unmarried mother to register the name of the father unless certain conditions apply. It is said that none of the exceptions to the registration requirement would be applicable in this case.

[90]Information can lose its private quality by being put into the public domain by the subject of the information. If the information is not of a private nature, such as the identity of one’s father, it is submitted it cannot become private by way of the subject’s personal preference not to reveal it.

[91]It is the defendant’s case that speculation about the paternity of the claimant is inevitable and continues up to the present day. The defendant relies upon the press cuttings exhibited to the witness statement of the Deputy Editor of the defendant’s newspaper which emanate from the entirety of the national press from the day of the first article to April 2012. The point which is made is that whenever the alleged father is mentioned, his adulterous liaisons form an integral part of a description of his personal character and integrity as a politician. The alleged father’s public record in relation to women is universally known, it was set out in the article published by a different newspaper on the day prior to publication of the first article. Reliance is placed upon the fact that when the claimant’s mother was asked “….would you agree with me that [the supposed father’s] public record of extramarital affairs was notorious” she replied “Gosh, yes.” Further, it was put to her that in the light of this record, any woman who conducted an adulterous relationship with him was playing with fire, she agreed. It is the defendant’s contention that part of the “fire” was the real possibility of being subjected to publicity if that relationship became public knowledge. As to that, the question was posed to the claimant’s mother:

“…..would you agree that if such a story leaked out …. it was bound to attract very considerable media attention in both the national media and the London papers because of his [position]?”

The claimant’s mother agreed with the proposition.

[92]No father was named in the claimant’s birth certificate. It is the defendant’s case that this omission would inevitably invite questions and is likely to do so during the claimant’s life until such time as the uncertainty is ended. The evidence of the claimant’s mother was that within a few months of the claimant’s birth she became aware of rumours concerning herself, the politician and the child’s paternity. The defendant submits that it was inevitable that, in publishing, reference would be made to this speculation. Particular examples are set out in Private Appendix 3a.

[93]Further, it is accepted by the claimant’s mother and the litigation friend that there is nothing which can be done to stop her former partner talking to the press denying, correctly, that he is the child’s father and suggesting that the politician is the father. An example of such an interview is identified in Private Appendix 3b.

[94]The claimant’s mother and the litigation friend were questioned about the inevitability and permissibility of speculation about the claimant’s paternity, in the absence of photographs. Asked about the eighth article the claimant’s mother accepted that there was nothing wrong with the text having regard to the fact that it was following up the article identified in Private Appendix 3b. The litigation friend was asked about an article in April 2012 which referred to speculation that the politician had fathered the claimant although it pointed out that no one would confirm or deny the child’s paternity. Asked whether he took issue with that point or whether it was legitimate reporting, the litigation friend said that it would “appear to be permissible”.

[95]In addition to the role and character of the supposed father is an additional matter of public interest relied upon by the defendant and identified in Private Appendix 4. The defendant relies upon these facts as representing a potential and embarrassing conflict of interest of which account could be taken when deciding to publish.

Reasonable expectation of privacy: the conduct and approach of the claimant’s mother

[96]The defendant relies upon evidence of the claimant’s mother’s conduct and conversations at a country house weekend party and subsequently in an interview which she gave to a magazine in order to demonstrate what is said to be her true attitude to her private and family life and the paternity of her child. It is said that the evidence is not merely relevant to her credibility, a point accepted by her counsel, but also to the following issues: i) In a case where the crux is said by both the claimant’s mother and the litigation friend to be the mother’s autonomy in relation to the upbringing of the child, it shows her true wishes as opposed to the position of her lawyers, whose consistent concern is described as being to avoid doing anything which might damage the prospects of success in the pending privacy proceedings; ii) It demonstrates there is no reasonable expectation of privacy, objective or subjective. The claimant’s mother was happy to talk to “friends” about the matter. The claimant’s mother accepted in evidence that she spoke to her friends about this matter and it is clear from the evidence that she did so to someone she had never previously met at a country house party and for an interview for publication in a magazine.

Country weekend party

[97]A weekend party was held at a country house in the summer of 2010 before publication of any article. During the course of the weekend the claimant’s mother spoke to another guest about her daughter. The person to whom the claimant’s mother spoke gave evidence as to what was said, as did the claimant’s mother. The evidence and my findings in respect of it are contained in Private Appendix [5].

Claimant’s mother’s magazine interview

[98]In the autumn of 2010 the claimant’s mother gave an interview to a magazine which was subsequently published. The article contained references to the claimant and speculation as to her paternity. The evidence of this article and my findings in respect of it are set out in Private Appendix [6].

[99]I find that there is a similar thread running through the evidence of the guest at the country weekend party and the editor of the magazine. I regard both as witnesses of truth. My sense of the account of the conversations which each had with the claimant’s mother is that even with people she had not previously met, she was not averse to hinting at or permitting speculation as to the identity of the father of her child.

[100]The claimant’s mother told the court that prior to the publication of any article she had told close friends of the identity of the claimant’s father. The account of the conversations identified in Private Appendices 5 and 6 take the matter further. Neither witness was a friend of the claimant’s mother, yet with each she was willing to entertain speculation as to the identity of the claimant’s father. The extent to which the claimant’s mother did allow speculation as to the issue of paternity is demonstrated by the published interview set out in Private Appendix 6.

[101]The conversations with friends, the identified conversations with the two witnesses who were not friends, the giving of the interview by the claimant’s mother are relevant to the issue of the claimant’s reasonable expectation of privacy. In Murray [37] it was observed that the court, in assessing the child’s reasonable expectation of his private life, can take account of how it has been conducted by those responsible for his welfare and upbringing. I find that the conduct of the claimant’s mother as identified in the above paragraph demonstrates at the least, an ambivalence towards, and an inconsistent approach ,with her stated aim in these proceedings.

Public interest

[102]The defendant submits that where an article concerns a matter of public interest, there will usually be certain “core facts” which are legitimately a matter of public interest and capable of being published. Inevitably other facts will be disclosed by the publication of the core facts, further facts may legitimately be included to illustrate points made in a way which captures the attention of readers. The engagement of readers’ interest is important, the commercial imperative to sell newspapers is a relevant factor to be taken into account when conducting the Article 8/10 balancing exercise. In Hutcheson v Newsgroup Newspapers [2012] EMLR 38 at [34] Gross LJ said that developments in privacy law may give rise to “real commercial concerns” in some sections of the media. These concerns are a “relevant factor for the court to take into account”, at least insofar as they engage “the public interest in having a thriving and vigorous newspaper industry, representing all legitimate opinions”.

[103]This journalistic licence is closely connected with the presentational freedom enjoyed by editors and journalists pursuant to Article 10. This recognises that if an article in the press conveys information or ideas which it is lawful to publish, the formal presentation is a matter for the editor and the journalist and not the court. Campbell at [59] to [64], Trimingham at [81] to [85]. Further, in Trimingham, Tugendhat J stated: “It is not appropriate for the court to express opinions on matters which are not relevant to a legal issue” [340]. The defendant contends that applying these principles, it is not the role of the court to “second-guess” editorial decisions made in good faith. The correct question for the court, faced with a complaint about a public interest news article, is not whether in the opinion of the court it was necessary to include particular words or pictures, but whether the decision to include it was reasonable, or within a proper journalistic margin. In this regard, a prohibition on publication of information, textual or pictorial, can only lawfully be made if necessary to achieve one of the ends set out in

Article 10 of the ECHR

. It is the defence case that it is not merely textual but also photographic information that has entered the public domain without challenge from the claimant.

Submissions and authorities received after the hearing

[104]Following the hearing, the defendant’s counsel sent to the court a copy of HH v Deputy Prosecutor of the Italian Republic, Genoa

[2012] UKSC 25

. Both parties commented upon the authority. This authority shows in the context of an extradition case, the application of the principle identified in Neulinger and ZH (Tanzania). In essence, the point is that the child’s best interests are not paramount in the sense that they must always prevail over all other concerns however powerful.

[105]It is the defendant’s case that the court lacks the information to assess the child’s best interests. The claimant contends that all necessary considerations are before the court e.g. the evidence of the claimant’s grandmother as to the consequences were the parentage of the claimant to be publicly acknowledged. The contention of the claimant is, that autonomy is a very significant concept in the law of privacy and the content of Article 8. In the present context it means that the issue of the claimant’s paternity, in particular, with the claimant herself, are for the family and not a newspaper.

[106]In their closing submissions, the defendant, for the first time, introduced the Welfare Reform Act 2009, as support for the proposition that, in future, the name of the father of the child will have to be on the child’s birth certificate, save in very limited circumstances. The late introduction of this statute understandably prompted written submissions from the claimant following the hearing, which in turn, resulted in further written submissions from the defendant taking issues with the claimant’s interpretation of the statute.

[107]The relevant provisions of the statute are not in force, they were not in force at the time of the claimant’s birth nor at the registration of her birth. The interpretation of the relevant provisions is disputed between the parties. When this provision is enacted its correct interpretation may well be an interesting exercise. In the context of this case the provisions of a statute yet to be in force do little to progress this matter.

Misuse of private information: photographs

[108]As to the claimant’s reliance upon the authority of Murray, the defence submit that it cannot be taken as authority for the proposition that publication of the photograph of the young son of J. K. Rowling in a public place without his consent was a breach of the child’s Article 8 rights or is unlawful: firstly, because the decision was made upon an application for summary judgement and the Court of Appeal made clear that their decision was only that it was arguable that the child’s expectation of privacy was engaged [48], secondly, given the limits of the appeal, the Court of Appeal did not attempt to strike the balance between the claimant’s privacy rights and the publisher’s rights to freedom of expression, a matter which they left to be determined at the trial [58].

[109]Further, as to future publication, the issue is academic by reason of the undertaking given by the defendant in its solicitor’s letter dated 25th October 2011 which states:

“Our client is, therefore, happy to confirm that it has no intention of publishing photographs of (the claimant), while she is a child, without parental consent. The only exception to this, that our client makes would be in respect of photographs that are taken at public events, where those attending can expect to be photographed by the media; or in respect of photographs already in the public domain; or if a photograph should be editorially necessary to illustrate a report that is in the public interest (as set out in the PCC Code). If a photograph were published in any of these circumstances, it would be justifiable and legitimate. Indeed, if your client’s claim were to succeed we would expect a court making a final injunction to add caveats to allow for such lawful publication……”

[110]The defendant has made clear that its offer in respect of undertakings relating to the photographs continues.

Public domain

[111]The defendant has produced many articles from the national press to substantiate its point that the matter of the claimant and her supposed father was in the public domain in the period following the publication of the first article and continued in 2011 and 2012. Reliance is placed upon the imperative provisions of section 12 of the Human Rights Act, namely that the court must consider the effect of the relevant information sought to be protected in a confidence/privacy claim being in the public domain. Section 12 places an obligation on the court to “have particular regard to the importance of Convention right to freedom of expression and ……..to the extent to which (i) the material has, or is about to, become available to the public”. In particular, it is said that the magazine article (Private Appendix 6) demonstrates what the mother was happy to put into the public domain, she clearly did not think it would interfere with her daughter’s rights.

[112]There can be no dispute that since the summer of 2010 a considerable amount has been published upon this topic. Whether or not it was triggered by the publication of the first article is a matter dealt with in the “Conclusion” paragraph 129 of this judgment. Conclusion Publication of the first article

Conclusion

[113]I have little difficulty accepting the claimant’s submission that the paternity of this young child is a matter which engages her rights pursuant to Article 8. The provisions of a statute, yet to be enforced, provide little by way of counter argument.

[114]As to the paramount nature of a child’s interests in any subsequent balancing exercise, the defence rightly stated that this case was not conducted as a “best interests of the child” hearing. Had that course been taken I would have expected other evidence to be called, including expert evidence. I note that in the written submissions received following the hearing it was stated on behalf of the claimant that the “child’s best interests are not paramount in a sense that they must always prevail over all other concerns however powerful.” I attach considerable weight to the claimant’s interests but I do not regard them as being so powerful as to override, without more, the competing interests involved in any balancing exercise.

[115]The approach which I have adopted is that having identified that the claimant’s Article 8 rights are engaged, to then ask whether she has a reasonable expectation of privacy in respect of the matter of her paternity. Of itself, I accept that this issue is one in respect of which this young claimant would have a reasonable expectation of privacy such as would allow her mother the time to decide when it would be appropriate to tell her who her father is. However, a real difficulty in this case has been the manner in which the claimant’s mother has, on identified occasions, chosen to deal with the question. I refer to her conversations with friends, but in particular the events of the country weekend (Private Appendix 5), the process leading up to and the publication of the interview in the magazine (Private Appendix 6) and to my findings.

[116]The claimant’s mother is an intelligent professional woman. She chose to speak and act as she did. In my view, the result has been to compromise the claimant’s reasonable expectation of privacy upon the issue of her paternity. I do not find that the claimant has no reasonable expectation, rather the weight to be attached is of a lesser degree than would have been the case had nothing been said or permitted to be said upon this matter.

[117]I understand the wish of the claimant’s mother and litigation friend to be allowed to find the right time to tell the claimant who her father is. It has never been the claimant’s case that the paternity of the claimant will remain a secret from her. Undisputed in this case is that gossip and speculation surrounding the paternity of the claimant existed in the months prior to the publication of newspaper articles. If not already in the published public domain, the identity of the claimant’s father was known or speculated upon beyond the group of friends in whom the claimant’s mother had confided and she was aware of that. I believe this would have played a part in hastening the decision of the claimant’s mother to tell the claimant of the identity of her father. The child was less than one year old at the date of the publication of the first article, the final article was published seven months later. The young age of the claimant does allow her mother time to consider when and how best to deal with the matter of her paternity.

[118]The Article 10 rights of the defendant must be recognised by the court in carrying out the balancing exercise as between the claimant’s Article 8 rights and the defendant’s Article 10 rights. The test required to justify publication is a high one, “exceptional public interest”. It is undisputed that there is a public interest in the professional and private life of the claimant’s supposed father. His professional position speaks for itself. As to his private life, he is man who has achieved a level of notoriety as result of extramarital adulterous liaisons. Of itself, the fact of an extramarital affair does not render inevitable the publishing of information that, as a result, a child was conceived. However, the claimant is alleged to be the second such child conceived as a result of an extramarital affair of the supposed father. It is said that such information goes to the issue of recklessness on the part of the supposed father, relevant both to his private and professional character, in particular his fitness for public office. I find that the identified issue of recklessness is one which is relevant to the professional and personal character of the supposed father. Specifically, I find that it goes beyond fame and notoriety.

[119]For the reasons identified I find that the claimant’s reasonable expectation of privacy is to be accorded less weight than would have been the position had the claimant’s mother said or done nothing. In balancing the claimant’s expectation of privacy against the public interest in the supposed father and in particular the recklessness, relevant to his character and fitness for public office, I find that the publication of the fact of the claimant’s birth in the circumstances alleged was justified. As to the claimant’s mother’s appointment by the claimant’s supposed father at a time when she was pregnant, of itself that would not have been of sufficient weight to justify publication, it was a matter of which account could be taken in making a decision to publish.

Subsequent articles

[120]These articles were published over a period of seven months. During the same period other media organisations published articles on the same story. For the reasons later identified I do not accept that all later publications were triggered by the defendant’s first article. Within a short period this matter was in the public domain, it continued to be so. It was not until many months following the publication of the first article that proceedings were served upon the defendant, the only media organisation sued in respect of any publications. The subsequent articles added little to the first or they followed up articles published in other newspapers. In addition to my reasoning in respect of the balancing exercise relevant to the publication of the first article I accept the defence public domain argument in respect of subsequent publications.

Publication of the photographs of the claimant

[121]The photograph of the claimant was taken in a public place, when she was less than one year old, her mother was unaware of it being taken, there is no suggestion that the taking of the photograph caused distress to the claimant. The same photograph accompanied the first, second and eighth articles published by the defendant’s newspaper. No consent to publication was obtained from the claimant’s mother. It is said that the photographs were published in order to permit readers to see whether or not there was any family resemblance as between the claimant and her supposed father. In respect of the eighth article, an additional justification was to permit readers to better judge the credibility of the denial of paternity by the claimant’s mother’s boyfriend.

[122]Given the context of the articles I am satisfied that the publication of the photograph did engage the claimant’s Article 8 rights. Even allowing for the margin of journalistic appreciation I do not regard the publication of any of the photographs as being reasonable nor do I accept that the defendant’s reasoning would constitute “exceptional public interest” sufficient to justify publication. The articles provided sufficient information, no more was required, particularly when the same involved the image of a young child photographed and published without the parent’s consent.

Damages

[123]I assess damages on the basis that on three occasions the defendant published unpixelated pictures of the claimant in breach of the Editors’ Code. On the third occasion the defendant was aware that the family had been given an assurance as regards the publication of photographs. Whether or not there was a misunderstanding as to the extent of the assurance, the defendant must have been aware that the claimant’s family took issue with the publication of a photograph of the claimant.

[124]An unusual feature of this case is that there has been disclosure of the correspondence which ensued in an attempt to settle proceedings. This included undertakings offered by the defendant relating to photographs and an offer of £2,500 in respect of the publication of photographs. For the purpose of settlement only, the claimant would have been willing to accept such a sum. In the event settlement was not achieved. On behalf of the claimant, Mr Price QC, emphasised that the concession was made only for the purpose of settlement. At trial he referred to a number of authorities indicating that the appropriate award by the court should be higher. In Spellman v Express Newspapers (No.2)

[2012] EWHC 355

QB, Tugendhat J at [114] stated:

“If a remedy and damages is to be an effective remedy, then the amount that the court may award must not be subject to too severe a limitation. Recent settlements in the much publicised phone hacking cases have been reported to be in sums far exceeding what in the past might have been thought to be available to be awarded by the courts. The sums awarded in the early cases such as Campbell were very low. It can no longer be assumed that damages at those levels are the limits of the court’s powers.”

[125]It is said that the need for damages to be an effective remedy echoes

Article 13 of the ECHR

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority….”

[126]Further, in Mosley v Newsgroup Newspapers Ltd [2008] EMLR 20 Eady J examined the nature of compensatory damages in privacy cases at [216] et seq:

“[216] Apart from distress, there is another factor which probably has to be taken into account for a less tangible nature. It is accepted in recent jurisprudence that a legitimate consideration is that of vindication, to mark the infringement of a right…..it [vindication] is simply to mark the fact that either the state of a relevant individual has taken away or undermined the right of another – in this case taken away a person’s dignity and struck at the core of his personality. It is a relevant factor, but the underlying policy is to ensure that an infringed right is met with “an adequate remedy”…. [217] If the objective is to provide an adequate remedy for the infringement of a right, it would not be served effectively if the court were merely to award nominal damages out of distaste for what the newspaper had revealed….”

[127]I accept the principles identified in those authorities. I note that the third publication of the photograph was done at a time when the defendant knew that an assurance, even if misunderstood, had been given and that solicitors were on the record as representing the claimant. It would have been the simplest of steps to seek to obtain the consent of the claimant’s mother to the publication of the photograph. As to the photographs, they are of one image, taken covertly in a public place when the claimant was less than one year old. 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.

Injunction

[128]The injunction sought by the claimant is wide in its terms. The relief sought is directed at any publication of her photograph, details of her name, addresses of her home, nursery and school. It also includes restraint of “any particulars reasonably likely to lead to her identification in conjunction with information concerning the claimant’s paternity.”

[129]As at the date of trial, a considerable amount of information regarding the claimant’s mother’s affair with the supposed father, the claimant’s birth and her supposed paternity was in the public domain. The claimant’s case is that all the articles which followed the first article were triggered by it. I do not regard the position as being so straight forward for the following reasons: i) This was a story which was going to be published. If the defendant had not done it, another newspaper would; ii) No one can stop the claimant’s mother’s ex-boyfriend speaking to the press; iii) Following the first article, letters were written by solicitors on the claimant’s behalf to media organisations including the defendant. No proceedings were issued until months later by which time numerous articles had been published upon the matter. No explanation has been given for the delay of nearly one year following the publication of the first article and service of proceedings upon the defendant. The trigger for the institution of proceedings appears to have been the republication of the photograph of the claimant accompanying the eighth article as this was perceived as a breach of the assurance/undertaking given by the defendant not to publish any photographs of the claimant. Of note is the fact that when the claimant’s mother and litigation friend were asked about identified articles no issue was taken with the content of the articles. Significantly, the litigation friend used the word “permissible” to describe the content. iv) The troubling matter of the claimant’s mother’s interview with the magazine. The claimant’s mother had input into the editing of the final article which contained information about the claimant and speculation as to her paternity.

[130]For the reasons stated I do not accept that all subsequent publications of this story went ahead by reason of the publication of the first article. If there had been a wish on the part of those acting on behalf of the claimant to prevent publication of similar articles, action could and should have been taken much earlier.

[131]So much information is now in the public domain that an injunction to prevent any further publication upon this topic would serve no real purpose. That said, the defendant’s undertaking not to publish any further photographs of the claimant save in certain circumstances can be accepted by the court and included in an order.

Cited in 10 later judgments

and 1 more case

Abbey v Gilligan & Ors 2012