Weller v Associated Newspapers: Court of Appeal Dismisses Appeal

In Weller & Ors v Associated Newspapers Ltd [2015] EWCA Civ 1176, the Court of Appeal considered the appeal from a judgment arising from the publication on the Mail Online of photographs of a Weller ‘family day out’. The publication was of seven unpixellated photographs of the children and their father out shopping on a public street and relaxing in a café in Los Angeles. The photographs, in particular, showed the faces of all three children. Complaint had been made to the photographer at the time and he had indicated that the children’s faces would be pixelated.

In support of the action the parents relied upon their concerns for the safety and security of their children and stated that their main purpose for bringing the action was to ensure that the children were left alone as they grew up.

The case turns on a balancing exercise between the reasonable expectation of privacy and the publisher’s freedom of expression. As Lord Dyson MR put it (at [39]-[41]):

I wish to make three points in relation to the balancing exercise in a case involving children. First, the fact that a child’s article 8 right is engaged as a result of the application of the first stage test does not automatically mean that any article 10 rights will be trumped by the need to consider the best interests of a child. Holding that a child has a reasonable expectation of privacy does not mean that they have a guarantee of privacy. The balancing exercise must always be undertaken in children cases as in adult cases.

Secondly, however, although a child’s right is not a trump card in the balancing exercise, the primacy of the best interests of a child means that, where a child’s interests would be adversely affected, they must be given considerable weight. It might require very powerful article 10 rights (for example, exceptional reasons in the public interest) to outweigh a child’s article 8 rights where publication would be harmful to the child.

Thirdly, the court does not necessarily require evidence of the harm that may be caused to a child by an invasion of privacy. It makes a judgment applying common sense and its own experience In K [2011] EWCA Civ 439, Ward LJ concluded (without evidence) that the children in that case were “bound to be harmed” because the invasion of privacy “would undermine the family as a whole and because the playground is a cruel place”.

The Court of Appeal judgment is at pains to emphasise that the rulings of Dingmans J involved the exercise of his discretion on the facts of the particular case. Lord Dyson MR repeats the limits on an appeal court’s right to interfere with such a discretion when it has been properly exercised and little is added to the law on the main issues by this judgment that cannot be gleaned from the trial judge’s judgment (covered by Louise Turner here).