Privacy Law Victory By JK Rowling
Privacy Law Victory By JK Rowling
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JK Rowling has assisted in broadening the scope of Britain's privacy laws with the ruling from the Court of Appeal that people are entitled to the protection of Article 8 of the European Convention on Human Rights (ECHR).
David Murray, aged five and the son of Rowling and her husband Dr Neil Murray, joined the model Naomi Campbell, Princess Caroline of Monaco and the Canadian singer Loreena McKennitt on the list of names shaping Britain's emerging privacy laws.
The court victory against a paparazzi agency shows that the scope of Britain's privacy law is wide and will make it easier for others to gain its protection, a privacy law expert has said.
The ruling establishing that the law protects the children of celebrities from the publication of unauthorised photographs, unless their parents have exposed them to publicity.
Rowling took the case with her husband on behalf of David who was part of a photograph of the family on the street in 2004 that was published in 2005. At the time of the photo, he was 19-months-old.
It was argued on behalf of David that he had not sought publicity and that the photograph of him should not have been published in the Sunday Express. The newspaper settled with the family, but agency Big Pictures contested the case.
Express Newspapers settled the case against it for invasion of privacy out of court but the agency, Big Pictures, applied to a high court judge to have the claim against it struck out. Last August, Mr Justice Patten threw out the parents' claim, saying that "the law does not in my judgment (as it stands) allow them to carve out a press-free zone for their children in respect of absolutely everything".
But three appeal court judges, headed by the master of the rolls, Sir Anthony Clarke, overturned that judgment yesterday. Clarke, England's second most senior judge, said: "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."
The High Court had thrown the case out before trial, but the Court of Appeal said that there was a case to answer and a full trial should be heard.
Since Naomi Campbell won her case against The Mirror newspaper, Article 8 of the ECHR, which guarantees the right to a private life, has applied directly to individuals. "The values enshrined in articles 8 and 10 are now part of the cause of action and should be treated as of general application and as being as much applicable to disputes between individuals as to disputes between individuals and a public authority," said Sir Anthony Clarke in his ruling, paraphrasing Lord Nicholls's judgment in the House of Lords in the Campbell case.
A person must demonstrate, though, that their rights to privacy are 'engaged' even before they decide whether someone else's behaviour has violated those rights, and courts have looked at this questions in different ways in the past. One approach has been to consider whether the other person's behaviour 'would be highly offensive to a reasonable person'.
The other approach has been to consider whether a person has 'a reasonable expectation of privacy' in the activity which has been publicised.