In accordance with the provisions of the Human Rights Act 1998 (HRA), individuals have the right to privacy. This right is however not absolute. Given that individuals also have the right to freedom of expression, where these two rights come into conflict with each other, the Courts must conduct a balancing exercise.
It has long been established that photographs do fall within the scope of information that may be protected by the law. One particularly difficult issue in respect of photographs is whether an individual has a right to privacy in respect of photographs taken in a public place. This issue was analysed in the case of Stoute and another v News Group Newspapers Ltd [2023].
Stoute and another v News Group Newspapers Ltd
Case background
You would be forgiven for not knowing who Mr and Mrs Stoute are. They are not celebrities nor have they set out to be in the limelight. They appear to be relatively private people, having apparently worked hard with their instructed lawyers to keep their pictures out of the press and limited online. Mrs Stoute was a nurse, who set up with her husband a PPE company prior to the Covid-19 pandemic commencing. Prior to the pandemic, Mr and Mrs Stoute appeared to have a reasonably successful business. The pandemic however catapulted their business into the stratosphere, having secured Government contracts worth £2bn.
Mr and Mrs Stoute bought a second home in Barbados along with a boat. They were on holiday in Barbados and were en route to a restaurant on their boat to celebrate one of their children’s birthdays when paparazzi took a number of photographs of Mr and Mrs Stoute, their house and their boat.
The Defendant (News Group Newspapers Ltd) bought those photographs and sent them to Mr and Mrs Stoute confirming an intention to publish them in support of an article they were intending to run. Mr and Mrs Stoute sought an injunction. At first instance, an injunction was granted to restrain publication of the photographs of the house and the boat but not the photographs of Mr and Mrs Stoute on a public beach. The Defendant, therefore, published those photographs.
Mr and Mrs Stoute made a further application seeking an injunction for various things but the only part of the application proceeded with at the hearing was for an injunction restraining further publication of the photographs of Mr and Mrs Stoute that had already been published.
It was not in dispute that in order for Mr and Mrs Stoute to be able to obtain an injunction, they would need to be able to show that they surmounted the hurdle set out by Section 12(3) HRA, which ‘provides that no relief is to be granted by a court which might affect the exercise of the right to freedom of expression so as to restrain publication before trial “unless the court is satisfied that the application is likely to establish that publication should not be allowed”’.
The specific claim pursued by Mr and Mrs Stoute was pursuant to the tort of misuse of private information. Such claims have a two-stage test, the first of which is that the parties must establish a reasonable expectation of privacy. This was the issue that was considered before the Court.
At first instance, the Judge refused an injunction. Lord Justice Arnold summarised his position as follows:
“50. The judge summarised the parties’ submissions at [22]-[25]. Having regard to the arguments on the appeal, it is necessary to set out his summary of Mr and Mrs Stoute’s argument as to reasonable expectation of privacy at [23]:
“… Mr Bennett stresses that the claimants were engaged on what was essentially a private activity, namely attending a celebratory meal for their daughter’s birthday, with invited family and friends. The material comprises photographs and the law is clear that special considerations apply to privacy cases involving photographs. He accepts that they were taken in a place where the public had access, but submits that it does not follow that the claimants did not have a reasonable expectation of privacy.
There is, he says, a difference between, on the one hand, other beach users merely seeing the claimants and their party on the beach, and, on the other hand, the claimants and their party being targeted and followed and pursued by a photographer, and secretly photographed, with the ensuing photographs being published to the world at large in a national newspaper.
A reasonable person would, he says, take offence and be concerned if he knew at the time, or found out later, that somebody who merely happened to be on the beach with them was behaving or had behaved in a ‘creepy’ manner, particularly if those being pursued and photographed included children. He says that knowing that one and one’s children have been covertly stalked in order to obtain photographs for mass publication is unnerving and destabilising and amounts to a particularly intrusive infringement into private life. He says it has a seriously detrimental effect on the claimants’ well-being and their family life, including the knowledge that, absent the court’s intervention, it may well happen in future when they are at their second home on holiday or elsewhere for as long as there is a market in paparazzi photographs.”
- The judge considered the first issue and resolved it in favour of Mr and Mrs Stoute at [26]-[31]. There is no challenge by NGN to that aspect of his decision.
- The judge considered the second issue at [32]-[37]. He began at [32] by listing the relevant facts. He concluded that it was not more likely than not that Mr and Mrs Stoute would establish that they had a reasonable expectation of privacy in respect of the photographs for the following reasons:
“33. The fact that the claimants were in a public location at the time that the information about them was obtained does not, of itself, mean that they had no reasonable expectation of privacy in respect of that information. A person may retain a reasonable expectation of privacy in respect of information that is obtained about them when they are in a public place. So, for example, if a person touches a postbox when posting a letter and thereby leaves their DNA on the letterbox, they retain a right of privacy in respect of that material.
If two people walking down the street have a whispered conversation with each other when there is nobody in the vicinity, they are likely to enjoy a right of privacy in respect of that conversation: cf PG v United Kingdom …. If a person suffers a mental health crisis or physical ill-health whilst in public, then they may well retain a right to privacy in respect of that: Peck v United Kingdom.
If a person is the subject of a lengthy and intrusive campaign by paparazzi photographers, that they may give rise to a reasonable expectation of privacy, even in respect of events that take place in a public place: Von Hannover v Germany …. If a person gets changed on a beach under cover of a towel and the towel momentarily slips, then they might reasonably expect not to be photographed.
In each of these cases there is an additional element which renders information private even though it is obtained in a public place. It is that additional information that engages the ‘inner zone’ that is recognised in Peck and PG. In the absence of that additional element, information that someone chooses to reveal in public is less likely to be recognised by the law as private.
Public and private CCTV and the use of mobile phones to take photographs and record video is ubiquitous. Anyone venturing out in public may be captured by such cameras. The reasonable person knows that is the case. It follows that there is no general reasonable expectation of privacy in respect of information that is patent to anyone who happens to be in the same place at the same time.
- In this case, the claimants were in a public place, namely a public beach, that they crossed in order to reach a restaurant. They arrived by jet ski. There was a demonstrative and performative element to their arrival. Members of the public were present at the restaurant and the beach and the method of the claimants’ arrival is likely to have drawn attention to them. The information that is captured in the photographs corresponds to how the claimants chose to appear in public.
There is no additional element of inherently private information. The information that is contained in the photographs is simply what any person present at that place and at that time would have seen. … The fact that the claimants did not consent to the photographs and that they were taken from a distance using highly magnified telescopic lenses and the context of the pursuit of the claimants over a period of two or three days is relevant to the question of whether they had a reasonable expectation of privacy. I do not, however, consider that these factors are present to a degree or extent which make it likely that the court at trial would conclude that they had a relevant reasonable expectation of privacy. The degree of intrusion is far less than was present, for example, in the Princess Caroline of Monaco case: VonHannover v Germany … , John v Associated Newspapers Ltd … .”
- The judge considered the third issue at [38]-[41]. He found at [38] that there was a real prospect that, if it was not restrained, NGN would republish the photographs. As he noted at [40], however, the photographs had already been published. He concluded that the balance of the risk of injustice favoured refusal of the injunction sought for the reasons he gave at [41]:
“I accept the claimants’ submission that an injunction can be granted to restrain further misuse of private information even if the information is already in the public domain. In the particular circumstances of this case, however, I consider that, even if the claimants could show that they had a reasonable expectation of privacy, the balance now falls against the grant of injunctive relief and in favour of maintaining the status quo until trial.”
Whilst stressing that the matter before the Court was simply whether Mr and Mrs Stoute were entitled to the interim injunction sought whilst they were waiting for the trial, the Court upheld the original judge’s findings. Lord Justice Arnold said:
“66. For the reasons given above I would dismiss this appeal. I would nevertheless endorse what the judge said at [37]:
“This does not mean that the defendant or others may publish any pictures of the claimants with impunity. It just means that the claimants have not established their case in respect of the application for an injunction that they have made. It is entirely possible that there are pictures in the possession of the defendant or others which would, if published, amount to an actionable tort.”
Comment
This case has a useful summary of the applicable case law in respect of pictures taken of individuals in public. It however highlights that this area of the law is a grey art and each case will turn on its own facts. It is therefore important to seek expert advice on your position without delay.
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