Law Reviews
PRIVACY
SENSE AT LAST:
J K ROWLING WINS HER CASE IN THE COURT OF APPEAL
A review of the recent ruling by Phillip Taylor
At
last we have some sense from the courts concerning
some implications of the Human Rights Act. Like
many, I was appalled by the original Queen’s
Bench Division decision by Patten J in Murray
v Express Newspapers and Another in 2007, where
the court found for ‘freedom of expression’ over ‘privacy’.
In my view, the first instance decision was wrong
both legally and morally. I am glad that the
Master of the Rolls, Sir Anthony Clarke, has
found for the writer, J K Rowling, suing under
her married name of Murray.
The issue for the Court of Appeal, to my mind,
was always a very simple one - how the balance
should be struck between an individual’s
human rights concerning privacy on the one hand
and the publisher’s right to publish on
the other.
At issue was a photograph taken of 19 month
old David Murray, Rowling’s son. The photograph
was taken without knowledge or consent. The Court
of Appeal was concerned with the question whether
David, as a small child, had a reasonable expectation
of privacy. The issue of whether the parents
would have such an expectation was not considered
(unfortunately).
THE LEGAL PRINCIPLE
The Court of Appeal principle can be summarised
as follows: Patten J, at first instance, was
wrong to decide that David had no arguable case
that he had an expectation of privacy.
Thank goodness!
But that only covers David.
It is quite possible that the principles behind
this issue will appear in some form in forthcoming
examinations so do revise it carefully. The question
could be about the two HRA articles: 8 (expression)
and 10 (privacy). Think about the legal elements
here: should the little boy have his expectation
of privacy upheld by the courts? The answer is,
unequivocally, ‘yes’ to most people.
We talk in jurisprudence of the concept of a
child’s rights being of paramount importance
as a policy in the Children Act, and the government’s
initiative ‘Every Child Matters’.
The Court of Appeal now seems to be reverting
to these guidelines.
However, I would suggest that this is not a ‘hard
case’, merely a policy directive where
the issue of morality, or any legal content,
is minimal and the only question of legal principle
is whether the judiciary can summon up enough
courage to go in the direction of some form of
privacy law, even for babies: therefore there
appears to be no privacy for celebrities, but
just for infants…but it is a start.
What we now have is probably the infancy of
a modern privacy law (if you will excuse the
expression) to protect specific categories of
people, for instance, only 19 month old tiny
persons. Shear and Green argued recently The
Times (13th May 2008) that the era of privacy
for celebrities is here although it will conflict
with the role of investigative journalists uncovering
stories as an alleged form of freedom of expression
to expose wrong-doing, and make a buck for the
journalist. The issue then is how far ‘expression’ can
be taken before it becomes familial intrusion.
That is where, I would venture to suggest, the ‘hard
case’ concept comes in and the dilemma
will remain unresolved. Therefore, every case
will be treated on its own facts. As I write
this, I find that Grant v Big Pictures (UK) Ltd
(2008) has been settled and actor Hugh Grant
awarded a substantial sum in damages for intrusion
at a private resort in the Maldives.
I said at the beginning of this article ‘sense
at last’, but is this the case really?
All we can say for certain is that judicial orthodoxy
is moving towards a more central position over
the gulf between ‘expression’ versus ‘privacy’.
It cannot be resolved, but it makes a great exam
© S Phillip Taylor MBE LLB Barrister-at-Law
Richmond Green Chambers
BIBLIOGRAPHY
Murray v Express Newspapers plc and Another
(2008) Court of Appeal
http://business.timesonline.co.uk/tol/business/law/reports/article3912700.ece
2007 case report – Queen’s Bench
Division
http://www.bailii.org/
The Times – Law Supplement: 13th May
2008
Is this the end of the kiss-and-tell? After
J. K. Rowling’s first-round victory against
the press, Graham Shear and Alison Green argue
that celebrities now have a clear right to privacy.
www.timesonline.co.uk
Law Supplement article:
http://business.timesonline.co.uk/tol/business/law/article3904790.ece
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