Milestone Moments: Misuse of Private Information and Celebrity Children

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Clause 6 of the Editor’s Code of the Press Complaints Commission (PCC) deals specifically with the treatment of children by the press. Nonetheless, the number of complaints that have been made pursuant to clause 6 have been relatively low. This is despite the fact that the press has an intense interest in a number of children’s lives, and their approach to such children can often be quite controversial. One only needs to consider the very public lives of the likes of North West, Suri Cruise or Prince George of Cambridge. Recently, in March 2014, the PCC managed to resolve a dispute between Lauren Silverman and the Mail on Sunday over the publication of inaccurate statements as to the holiday arrangements of Simon Cowell’s new born baby boy, Eric. A noteworthy attribute of the children named above, is the fact that they are all “famous from birth.” In fact, they can not truly be held responsible for the public persona they hold. Their public persona flows from the occupation of their parents.

At the Leveson Inquiry, evidence was given which demonstrated that members of the press had failed to give a higher level of protection to children compared to adults, especially in the practice of photographing celebrity children. Rosie Nixon, editor of Hello! Magazine, observed that there “was a sort of bounty on the head of [a] child for [their] first photos. They can make a paparazzo a lot of money.” In 2008, it was reported that Brad Pitt and Angelina Jolie received $14 million from Hello! and People for the rights in the first pictures of their twins, Knox and Vivienne. More recently it was reported that Kanye West and Kim Kardashian were offered $3 million for rights in the first photographs of their baby boy, North.  This can be a wise commercial investment for publishing companies. It has been alleged that a Vanity Fair magazine carrying the first shots of Suri Cruise in 2006 saw a 60% jump in sales compared to an average issue, and in 2008 it was said that web traffic doubled to People.com when they featured the first pictures of Jennifer Lopez’s twins.

In July 2014, the two-year-old son of singer Adele settled a privacy complaint he made against the photo agency Corbis Images UK. Corbis offered to pay an amount in damages and legal fees for the part they played in making certain photographs of Adele and her son available for publication in the English press. The parents had been saddened by the fact that occasions they deemed as “milestone moments” for the family had been captured and published across the globe. Such moments included his first family outing, and first trip to playgroup.

As was recognised in Wainwright v Home Office [2004] 2 AC 406, there is no common law tort of invasion of privacy. The intrusive media activity carried out by the paparazzi may, of course, lead to a claim being made against them pursuant to the legal torts of assault or harassment. Nonetheless, it is the tort of misuse of private information that has been used as a cause of action in the cases of AAA v Associated Newspapers [2013] EWCA Civ 554, Murray v Express Newspapers & Anor [2008] EWCA 446, and Weller v Associated Newspapers [2014] EWHC 1163 to compensate the children of famous parents for photographs that have been published of them, and to prevent similar intrusive activity taking place in the future. This post shall consider the different aspects of this cause of action as it applies to celebrity children.

Misuse of Private Information

In Murray Sir Anthony Clarke MR  suggested, subject to the specific facts of any particular case, that;

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. [57]

Therefore, it is at least arguable that the tort can protect children from being “targeted” by the paparazzi. Nonetheless, the tort of misuse of private information can ultimately protect the child from the subsequent distribution of these photographs by the media.

To establish a cause of action for misuse of private information, one must consider whether the claimant has a “reasonable expectation of privacy.” If they do, then one must carry out “the ultimate balancing test.” This is the balancing of a claimant’s right to privacy on the one hand and the publisher’s right to freedom of expression on the other.

Is there a reasonable expectation of privacy?

This test takes into account all the circumstances of the case. Following Murray [36], these circumstances include:

  • The attributes of the claimant: A major “attribute” in cases involving children is the claimant’s age. Lord Clarke in Murray v Express Newspapers referred to the United Nations Convention on the Rights of the Child when highlighting the importance of the rights of children in various different contexts.  The Convention makes it clear that the best interests of the child are to be a primary consideration for the court (Article 3) and that “[n]o child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, [or] home” (Article 16). Although this does not give the interests of the child precedence in every case, particular weight should be placed on the rights of a child (See K v Newsgroup Newspapers [2011] 1 WLR 1827). However, in Spelman v Express Newspapers [2012] EWHC 355, Tugendhat J made it particularly clear that children do not enjoy a general right to privacy simply by way of their age. Although he did admit that children may be entitled to protection from publicity where adults would not ([53]).  Tugendhat J drew a direct comparison between the case before him and Murray. He opined that the Murray case was “very different” from Spelman, the child in Murray “was an infant in a push chair, not a 17 year old with a personality and public profile of his own” ([55]). The fact that the claimant was nearing the age of 18 seemed to affect his reasonable expectation of privacy, coupled with the fact he had developed a public persona for himself. Therefore, the photographing of a very young child for the sole reason that they have a famous parent appears to be an extremely relevant consideration in this part of the test. Such children cannot be said to have sufficiently developed a pubic profile of their own. This is consistent with the observation in Murray; “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 a child of a famous parent” ([46]).
  • The place at which it was happening/The nature of the activity in which the child was engagedThese circumstances can include those occasions Adele and her partner described as “milestone moments,” which could also loosely be described as “family activities.” In Murray, the Court of Appeal recognised the unique status of such “family activities.” They stated that this kind of activity is “clearly part of a person’s private recreation time intended to be enjoyed in the company of family … [and] publicity of such activities is intrusive and can adversely affect the exercise of such social activities [in the future]” ([55]). They deemed it arguable that such private family activity could even be rather innocuous, such as visiting a cafe. To intrude upon these moments could make a well-known parent reconsider whether they can do any activity with their family in public again, without being hassled by the press. This argument seemed to be endorsed in the case of Weller v Associated Newspapers, where the court found that a private family trip included shopping and going to a cafe. Paul Weller observed in that case that “regardless of the fact technically [they] may have been out in public, [they] were still doing something essentially private.” Therefore, “milestone moments” in a family’s life may indeed occur in a public place and they should be respected by the press as being part of a child’s private life.
  • The absence of consent and whether it was known or could be inferred/The circumstances in which and the purposes for which the information came into the hands of the publisher: One way to demonstrate that you absolutely do not consent to pictures being taken of you with your family is by sending a “McGregor Letter” to various members of the press. This letter is named after the actor Ewan McGregor, who won a privacy battle against Eliot Press SARL in 2003 when the tort of misuse of private information was still in its infancy. Ewan McGregor had made a general request to the media not to publish pictures of his two children, yet English and Scottish papers still published photographs of his children on holiday in Mauritius. He later went on to reach a settlement with the Sun and the Daily Record for an undisclosed sum in damages. Informing the press that you do not wish pictures of your family to be taken and published could help reinforce a child claimant’s reasonable expectation of privacy. In Weller, the Deputy Editor of the Mail Online (Elizabeth Hazelton) gave evidence in support of the paper. She spoke about the procedure usually adopted by the Mail Online. Most notably, she said that when considering whether to publish photographs they would consider “whether there had been complaints from the celebrity in the past… [s]he said that in some  instances some celebrities will issue a notice that they don’t want their children to be pictured in the press.” The court considered the extensive evidence which demonstrated an absence of any kind of complaint being made by Paul Weller on previous occasions. The reason for such consideration was that “the evidence suggested that, if previous complaints had been made, [the] Mail Online would have been unlikely to have published the photographs” without pixilating the children’s faces . Nonetheless, the court went on to say that the absence of any complaint in the past could not be interpreted as consent to the publication of more intrusive and objectionable pictures of the children in the future ([135]). It seems that “milestone moment” family activity will very often be conducted in a way that it is particularly obvious that consent is not being given to photographs being taken. “Spotting” a celebrity on a family outing is far removed from an orchestrated, consensual publicity stunt.
  • The effect on the child: Children are much more vulnerable than adults due to their age.  In Weller, Paul Weller’s sixteen year old child (Dylan) spoke of her shock, embarrassment and upset at the taking, and subsequent publication, of photographs of her, her father and her father’s ten month year old twins on a family occasion. Rather interestingly, when it came to assessing the damages to be awarded in that case, the younger siblings were compensated with a lower amount than Dylan. The court’s reasoning for this seemed to be that, unlike Dylan, “the twins will not have suffered any immediate embarrassment  from the publication” ([196]). It would appear from this reasoning that the younger the child, the less likely press intrusion will have a significant effect on them at the time. Furthermore, a curious observation was given in evidence by the defendant newspaper in the AAA case. They submitted that if a child is very young at the time of a photograph being taken, the likelihood of them being recognised from the photograph reduces with age. This may remove some of the negative effects that would otherwise have followed from the publication of the photographs. Nonetheless, the effect on younger children can still be profound. For example, a child could be bullied or stigmatised because of a publication. There could also be implications relating to the safety and security of the child. Jennifer Gardner, in her testimony before the California state assembly in support of anti-paparazzi legislation (Penal Code Section 11414), noted that “there are violent, mentally-ill stalkers who can now get close to my kids by simply following mobs of photographers and blending in … Like the very man who threatened to cut the babies out of my belly. Who was arrested waiting behind our daughter’s preschool, standing among the throng of paparazzi. That man is still in prison, but I have no doubt there are others like him still out there.

The ultimate balancing test

This is an attempt to balance the Article 8 right to respect for private and family life, with the Article 10 right to freedom of expression. The principles underpinning the “ultimate balancing test” were outlined in Re S [2005] 1 AC 593:

First, neither article has as suchprecedence over the other. Secondly, 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. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. [17]

Von Hannover v Germany (No. 2) (2012) 55 EHRR 15 at [108] to [113] outlined a number of relevant criteria to be considered when carrying out this  balancing test. These are:

  • The contribution to a debate of general interest: The European Court of Human Rights recognises that “not only does the press have the task of imparting information and ideas on all matters of public interest, the public also has a right to receive them.” (Von Hannover (No. 2) at [118]). The European Court also said in Von Hannover v Germany (No. 1) (2005) 40 EHRR 1 that if the sole purpose of the publication is to “satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, [the publication] cannot be deemed to contribute to any debate of general interest to society” ([65]). In AAA, Nicola Davies J adopted the wording of the Editor’s Code of the PCC when she stated that the publication of photographs of the child in that case required a justification based on an “exceptional public interest” ([122]). It is difficult to envisage a hypothetical occasion when a story requires the photograph of a celebrity’s child to be published because there is an exceptional public interest in doing so. The justification would appear to be that such photographs are incredibly lucrative for publishers. Many people want to see such pictures and this can help sustain a free press, which is necessary in a democratic society. The court in Weller accepted evidence submitted by the publisher of the Mail Online (Martin Clarke) about the difficulties faced by the site in the current global market. He submitted that with the advent of the internet, newspapers had to change the way they operated with a greater focus on advertising and digital content. He noted that “show business or celebrity stories are popular and generate revenue through digital advertising spend which was critical to Mail Online’s commercial model.” Despite the Mail Online being the most visited newspaper website in the world, it competes for revenue against Google, MSN, AOL, Yahoo and The Huffington Post, not to mention celebrity gossip sites based in the US such as perezhilton.com or Radar Online. Martin Clarke submitted that these competitors have “a huge advantage brought by economies of scale, and they [enjoy] the right of relatively unfettered free speech enshrined in the constitution of the United States of America.” This is a repetition of the commercial viability argument that was put before the court in A v B [2003] QB 195 where Lord Woolf responded that “courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.” Nonetheless, in Weller, Dinegmans J held that the balance of the general interest of having a vigorous and flourishing newspaper industry did not outweigh the interests of the children in that case ([182]).
  • How well known is the person concerned and what is the subject of the report: Children can become very well known, as discussed above, because of the occupation held by their parents. Dingemans J opined that his judgment in Weller was consistent with Clause 6 of the Editor’s Code of the PCC which states that “[e]ditors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life” ([182]).
  • Prior conduct of the person concerned (or their parent): It will be of relevance here that photographs had been published on a previous occasion with the consent of the child’s parent, or upon that parent’s request. In the AAA case, the way in which the child’s private life had been handled by those who were ultimately responsible for her welfare and upbringing was particularly relevant. The judgment of Nicola Davies J, which was upheld on appeal, attached particular weight to the part played by the child’s mother in “the perpetuation of facts and the speculation which [was] at the core of [the] proceedings” ([26] of Private Appendix 6). The assessment of the previous conduct of a child’s parent is fact specific. In the Weller judgment the court explicitly recognised that even though several interviews, photographs and social media posts had been published on the children, “photographs showing the faces of the children on an afternoon out with their father had not previously been published” ([179]).
  • Content, form and consequences of the publication: Under this criterion, it is important to look at the tone of the publication. Particular deference will most likely be given to editorial judgment. As was noted in Guardian News and Media Ltd v Ahmed [2010] UKSC 1; “judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on.” Nonetheless, in AAA, Nicola Davies J did not believe it was reasonable for the editors to publish photographs of a child to help readers assess the credibility of a story which was of public interest, a story which related to the paternity of the child ([121] and [122]). By considering the “consequences” of the publication one can bring into the balancing exercise “the effect on the claimant,” which also forms part of the test for the reasonable expectation of privacy. Photographs are a peculiar form of information which can disclose much more than the written word, and so can have a much greater effect on the claimant because of their particularly intrusive quality. The Court of Appeal noted in  Douglas v Hello! (No 3) [2005] EWCA Civ 595 that photographs can turn a reader into a spectator, and in some cases may even turn them into a voyeur ([84]). A photograph’s intrusive quality is heightened by the fact that they can be permanent, and therefore can be used again and again. The Court of Appeal went on to observe that “there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph, is confronted by a fresh publication of it” ([105]). Douglas (No 3) was considered in Weller, where Dingemans J concluded that the photographs in that case showed the children’s faces, “one of the chief attributes of their respective personalities.” Not only that, but the photographs also showed the children as “the children of Paul Weller” ([170] and [171]). Although this was considered as part of the reasonable expectation of privacy test in that case, it is also of relevance to this part of the test.
  • Circumstances in which the photographs were taken: An interesting consideration in this part of the test is the judgment of the European Court of Human Rights in Reklos v Greece [2009] EMLR 16. The court found an infringement of a baby’s right to privacy under Article 8 where a photograph was taken without the baby even being aware of it being taken. Furthermore, the photograph was simply a face on portrait of the child, and it did not show anything capable of being regarded as degrading. Nonetheless, the key issue in the case was the fact that the “baby’s image was … retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents.” This description could equally apply to the activity of a photo agency. This case suggests that even unexceptional actions by a photographer could amount to an infringement of a child’s Article 8 rights. Further or in the alternative, the methods adopted by the paparazzi to get a photograph of a celebrity with their child can be particularly unconscionable. For example, in 2011, Tori Spelling was chased by paparazzi bringing her children to school which resulted in her crashing into a wall. The more objectionable the circumstances under which the photographs have been taken, the less weight will be attached to the freedom of expression arguments advanced in such cases. Particular regard will also be had to “whether the person photographed gave their consent to the taking of the photos and their publication or whether this was done without their knowledge or by subterfuge or other illicit means” (Von Hannover (No. 2) at 113).

Conclusion

As of June 2014, the media outlets Entertainment Tonight, People magazine, The Insider, BuzzFeed, The Huffington Post and justjared.com publicly announced their commitment to the #NoKidsPolicy campaign. This campaign seeks to make it less lucrative for a paparazzo to capture pictures of celebrities with their children, by encouraging media outlets to refuse to publish photographs of a celebrity’s child unless it is consented to, or the child is a public figure in their own right.

This campaign is already, to some degree, reflected in the current legal framework of the English tort of misuse of private information as outlined above. It is a fact specific approach to the balance which must be struck between a child’s right to privacy, and the right to a free press. The court will take into account the actions of a child’s parents, and whether photographs have been consented to. Nonetheless, photographs are a uniquely intrusive form of private information, and it is difficult to envisage a time when a photograph of a celebrity’s child would truly be in the public interest. Fortunately, if such an occasion were to arise, the current framework gives sufficient flexibility that would allow a strong freedom of expression argument to tip the balance in favour of publication. Nonetheless, it would seem that the taking and publishing of paparazzi photographs of celebrity children would usually amount to misuse of private information.

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