Privacy, Publication of Images and Article 8: New Supreme Court Judgment

June 30, 2015

The Supreme Court has published its judgment in an appeal that casts further light on the limits of privacy, especially in the context of the balance of the right to a private life and other social values. 

In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42 the Lords Justices dismissed the appeal by a young man which related to the publication of his image (taken from CCTV), at the request of the police, in the Derry Journal and the Derry News. He was barely 14 at the time. The publication was part of a police campaign, Operation Exposure, designed to counteract sectarian rioting. The appellant believed that the publication was a breach of his rights under the ECHR, Article 8.

When dismissing the original application, the Divisional Court held that JR38’s Article 8 right was engaged because the published image was of a child, where it was at least possible he was involved in serious public disturbances. This risked stigmatising the child and impairing his rehabilitation and reputation. The interference with Article 8 was justified, however, because it was necessary for the administration of justice and not excessive in the circumstances. JR38 appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeal. Lord Kerr, with whom Lord Wilson agrees, holds that Article 8 is engaged but the interference with the right is justified. Lord Toulson, with whom Lord Hodge agrees, holds that Article 8 is not engaged, but if it were engaged the publication would be proportionate. Lord Clarke writes a separate judgment concurring with Lord Toulson.  

Lord Kerr examines the Strasbourg jurisprudence on engagement of Article 8 and concludes (at [55]-[56]) that a nuanced approach is needed to reach a conclusion on this issue. The test is essentially a contextual one, involving not only whether the person asserting the right had a reasonable expectation of privacy but also many other possible factors such as the applicant’s age, consent, the risk of stigma and the use to which the published material is put. Reasonable expectation of privacy may be a factor of considerable weight but it is not determinative. On the facts, Article 8 is engaged because of JR38’s age and the effect which the publication of the photographs may have on him. The emphasis under Article 8 should be on the publication of the photographs rather than the activity in which JR38 was engaged (at [65]).

Lord Kerr concludes, however, that the interference with Article 8 is justified. The police were entitled to disclose the image under the Data Protection Act 1998 as the publication was for the purposes of the prevention and detection of crime and the apprehension and prosecution of offenders. Publication furthered these objectives as well as seeking to divert young people from criminal activity. The police’s painstaking approach showed that this was a measure of last resort. The publication struck a fair balance between the interests of the community and JR38. He stood to benefit from being diverted from criminal activity, as did his community from the prevention of crime and apprehension of offenders (see [70]-[80]).

Lord Toulson concludes that Article 8 is not engaged. The ‘touchstone’ for engagement of Article 8 is whether the person seeking to assert their rights had a reasonable expectation of privacy (at [88]). The fact that the JR38 was a child at the relevant time does not justify using another test but may be relevant to its application. It is an objective test. There was no reasonable expectation of privacy in these circumstances. Article 8 does not exist to protect rioting and the involvement of JR38 in the riot was not an aspect of his private life which he was entitled to keep private. Alternatively, if Article 8 were engaged, any interference with the Article 8 right of JR38 was justified for the reasons given by Lord Kerr.

Lord Clarke holds (at [107]-[112]) that Article 8 was not engaged or, alternatively, that any engagement was justified. The relevant test is whether there was a reasonable expectation of privacy. JR38 could not have had an objectively reasonable expectation that such photographs would not be published.