Do Children Have The Same Reasonable Expectation Of Privacy As Adults?

The above question is one that was put before the Court in the case of Weller and others v Associated Newspapers Ltd [2015] All ER (D) 194 (Nov).

Weller and others v Associated Newspapers Ltd

Case background

The Defendant, the Mail Online, published an online article and photographs of Paul Weller’s daughter (16 years of age) and his twins (10 months old). The three children brought the proceedings claiming damages for misuse of private information and breach of the Data Protection Act 1998 (DPA).

In the first instance, the Judge ruled that the Defendant was liable for the misuse of private information and breach of the DPA.

The Defendant appealed against this decision arguing that the publishing of the photographs of the children on a public street without consent would not give rise to a reasonable expectation of privacy.

The main question before the Court of Appeal was therefore:

1. Did the fact that the photographs were taken in public impact upon the children being able to argue that they had a reasonable expectation to privacy; and
2. Whether a child’s reasonable expectation of privacy was the same as an adult’s.

What did was decided?

The Judge confirmed that in this type of case the Courts should apply a two-stage test being:

1. To establish whether a person had a reasonable expectation of privacy; and
2. If the person did have a reasonable expectation of privacy, the Court should conduct a balancing exercise weighing up the person’s privacy rights against the defendant’s right to freedom of expression.

The Judge further confirmed that whilst the considerations for establishing a reasonable expectation of privacy were broadly the same for both adults and children, there were several considerations which would only be relevant to a child. He set these out as follows:

1. The fact that a child’s parents is in the public eye could not be relied upon to argue that the child should have a lower reasonable expectation of privacy;
2. The child’s reasonable expectation of privacy could not be different from that of a child whose parents were not in the public arena; and
3. In respect of the balancing exercise, just because the claimant is a child does not automatically mean that their rights to privacy trump the defendant’s right to freedom.

Ultimately, it was decided that the Judge in the first instance had been right to conclude that all three Claimants had had a reasonable expectation that the photographs would not be published. Whilst the photographs had been taken in a public place it is well established that there are some matters to which a person could have a reasonable expectation of privacy, notwithstanding the fact they occurred in public. In this case, it was decided that a family activity would benefit from the reasonable expectation of privacy.

Comment

Children do have the same reasonable expectation of privacy as an adult, although most pertinently just because the Claimant is a child does not mean that their rights will automatically outweigh the Defendant’s right to freedom of expression. The Court must apply the balancing exercise as they would do if the Claimant were an adult.