On 17 January 2013 Mr Justice Briggs, sitting in the High Court Chancery Division, published his reasons in  RocknRoll v News Group Newspapers Ltd granting an interim injunction restraining News Group Newspaper from publishing photographs of Edward RocknRoll (the “claimant”).  See my post on the reportage here.

FACTS

In July 2010 the claimant attended a private fancy dress party to celebrate the 21st birthday of his then wife’s sister at her parent’s private estate [1].  Another guest at the party took photographs of the claimant (“the Photographs”), some of which showed him partly naked. The Photographs were posted on the photographer’s Facebook page where they could be viewed by his 1,500 “friends”, until subsequent changes to the Facebook settings resulted in them being made accessible to the general public (unbeknownst to the photographer).  Since the Photographs were taken the claimant divorced his first wife and married Kate Winslet, an actress [2].  The Photographs came to the attention of the defendant at the beginning of January 2013 [3] and it:

“..wishes to publish the Photographs, together with a description of their contents, in the Sun newspaper, and notified the claimant of its intention to do so, albeit not the source of the Photographs… it intended to pixillate the part of any published photographs which showed the lower half of the Claimant’s body.”

DECISION

At [5] his Honour set out the general principles applicable in considering an application for injunctive relief against misuse of private information in the context of Articles 8 and 10 of the Human Rights Act, extracting from ETK v New Group Newspapers Ltd, which are (citations omitted):

(1) The first stage is to ascertain whether the applicant has a reasonable expectation of privacy .. if not, the claim fails.

(2) The question of whether or not there is a reasonable expectation of privacy in relation to the information:

“…is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher”…

The test .. is to ask whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, rather than the recipient, would find the disclosure offensive.

(3) The protection may be lost if the information is in the public domain. In this regard there is..

“…potentially an important distinction between information which is made available to a person’s circle of friends or work colleagues and information which is widely published in a newspaper.”

(4) ..the second stage of the inquiry is to conduct “the ultimate balancing test” which has the four features ..:

“First, neither article [8 or 10] has as such precedence 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.” (It should be noted that the emphasis was added by Lord Steyn.)

(5) “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.”

(6) ..an interim injunction should not be granted unless a court is satisfied that the applicant is likely – in the sense of more likely than not – to obtain an injunction following a trial.”

The claimants case was summarised by his Honour, at [9] as:

(1) The claimant had a reasonable expectation of privacy in relation to the Photographs and their content since they were taken, albeit with his consent, at a private party on private premises and showed him behaving in a manner which a reasonable person of ordinary sensibilities, placed in the same situation, would consider it offensive to have disclosed to the general public in a national newspaper.

(2) Neither the Photographs nor their contents would, if published, contribute anything of substance to any debate of general interest in a democratic society ..

(3) Publication of the Photographs, or of their content, would risk causing real harm and distress, both to him, to his new wife and to her children of whom he is now the step-father and whose day to day care he shares with Miss Winslet.

At [10] his Honour extracted the the defendant’s position as:

(1) The claimant has both before and by reason of becoming married to Miss Winslet made himself a “public figure in the social sphere” with an accordingly restricted expectation of privacy.

(2) The claimant has waived any rights to privacy in relation to his life with his former wife by courting and being paid for national publicity in connection with his marriage to her in 2009, which was blessed at a party at the very same premises less than a year before the party at which the Photographs were taken.

(3) The Photographs have come into the public domain by their being posted by Mr Pope to his Facebook account. The Photographs were, at least on 2 January this year, capable of being viewed there not merely by Mr Pope’s friends, or even the friends of his friends, but by any member of the public with a Facebook account. The Photographs were taken with the claimant’s consent rather than covertly.

(4) The balance between the vindication of the defendant’s Article 10 rights and the claimant’s Article 8 rights should be resolved in the defendant’s favour, because the conduct of the claimant revealed by the Photographs, and their posting on Facebook, were matters which, although not unlawful, the public, or a section of the public, could legitimately criticise, so that the Photographs and their contents did contribute to a matter of legitimate public debate.

(5) Against those decisive considerations, the speculative risk of harm to Miss Winslet’s children could not tip the balance the other way.

Reasonable expectation of privacy

The appropriate principles are:

1. private life extends to aspects relating to personal identity such as a person’s name or a person’s picture but also includes a person’s physical and psychological integrity;
2. the protection under Article 8 is intended to permit the development, without outside interference, of the personality of each individual in his relations with other human beings; and
3. There is a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life.”

His Honour rejected the defendant’s submissions finding:

1. the photographs were of the claimant in the company of his family and friends at a private party on private premises behaving in a manner in which he would be entirely unlikely to behave in public “not least because of his partial nakedness” [12].
2. nothing turned on the fact that the photographs were taken with his consent. The claimant had no idea that the photographs would be posted on the photographer’s Facebook account or would be made available any more widely than to their mutual friends [13].
3.  It is most unlikely that the defendant would establish that in consenting to the taking of the Photographs, the claimant intended to consent to their publication in a national newspaper[13].
4. at the time the Photographs were posted on the Facebook account it was unknown that they would come to be accessible by the general public due to a later change in privacy settings[13].
5. there was nothing of substance to the submission that the claimant deprived himself of what would otherwise be a reasonable expectation of privacy relating to his conduct at a private party, either by being a public figure, or by contributing for reward to publicity about his first marriage [14].

Public Figures

Public figures are entitled to enjoyment of Article 8 (privacy) rights on the same basis as anyone else [17].

His Honour found that the claimant’s  employment with Virgin Galactic did not place him in the “narrow category” of persons who while holding no public office have reduced expectations of privacy due to their important role in public affairs, such as chairman of major public companies and captains of sporting teams [15].

That the claimant engaged in publicity regarding his first marriage did not constitute publicity as a prominent member of the social sphere [16]. That argument was no more than an example of the “discredited zone argument” [19].

Whether a person waives his privacy rights by courting publicity about some aspect of his life requires a fact intensive evaluation rather than the application of a general principle [18].  A person courting publicity about some aspect of his life once does not mean he has permanently waived privacy in relation to that aspect of his life thereafter [18]. The position might be different if some aspect of the conduct now sought to be made public undermines earlier sentiments attributed to the claimant, i.e. the “hypocrisy case” [19].

The photographs are in the public domain

His Honour drew a sharp distinction between information being placed in the public domain where its content is commercially sensitive trade secrets and that where it involves the misuse of private information [20]. In the former, the disclosure may lead to the loss of confidentiality.  Regarding the latter, the relevant factors are:

1. the protection of the law will not be withdrawn unless and until it is clear that a stage has been reached where there is nothing left to be protected [23];
2. further/fresh revelations to a different group of people may cause distress and damage to an individual’s well being [23];
3. the fact that information may be publicly available (e.g. addresses on land registry) does not prevent a claim for an interim injunction.  Theoretical accessibility is not the test but rather whether an injunction to prevent publication would serve no useful purpose [24];

His Honour found for the claimant (at [27] & [28]) stating, at [25]:

“..it is very unlikely that the defendant will be able to establish at trial that no useful purpose would be achieved by a restraint on publication of the Photographs or their contents, or that there is no longer anything by way of privacy left to be protected…”

and

“..on the present evidence, that the Photographs would only have been found either as the result of very expert, expensive and diligent research, or as the result of a tip-off by someone who knew about them and about their whereabouts.”

Balancing privacy (Article eight ) and freedom of speech (Article ten)

His Honour stated, at [30]:

Article 10 protects freedom of speech across a broad spectrum, including not merely inoffensive information or ideas, but also that which may offend, shock or disturb..and even that which is trivial or banal”

and described the hierarchy of speech, and its level of protection, as being:

“At one end of the spectrum is information, the disclosure of which contributes to genuine public debate in a democratic society… At the other end there is what the ECHR has described as tawdry allegations about an individual’s private life or press reports concentrating on sensational and, at times, lurid news, intending to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life.. In relation to the former, the press has a pre-eminent role as a public watchdog, so that if it can be shown that this role would be hampered by the enforcement of Article 8 privacy rights against the press in a particular case, this may be a decisive factor against granting relief..”

In addition the court should focus on the following, at [31], in applying the proportionality test:

1. the public profile of the claimant;
2. his conduct prior to the threatened publication;
3. the manner in which the information about his private affairs was obtained;
4. the content, form and potential for harm of the publication;
5. the severity of the sanction proposed were all matters to be taken into account; and
6. the contribution which the publication might make to genuine public debate.

In evaluating the question whether a particular publication would contribute to a genuine public debate a judge must not apply his or her own standards of public or private morality  and  a margin of appreciation is to be allowed to journalists in deciding where to draw the line [32] with his Honour stating by way of explanation:

“Clearly, publication of conduct may contribute to genuine public debate even though the conduct is not unlawful, but it by no means follows that the court must abdicate any attempt to assess, on the facts of a particular case, whether publication is sought genuinely to inform public debate, or rather merely to titillate the undoubted interest of a section of the public in the sexual or other private peccadillos of prominent persons. The two categories are not necessarily exclusive, as the Profumo scandal vividly illustrates.”

His Honour found that the defendant had nothing like a better than even chance of convincing a court that the publication of the Photographs or a description of them will contribute anything to public debate about matters of genuine public interest:

and that at [33]:

“That nothing in the conduct of the claimant which the Photographs portray gives rise to any matter of genuine public debate, however widely drawn is the circle within which such matters may genuinely arise. As the claimant himself publicly admits, the conduct in question may fairly be described as the product of foolishness and immaturity. It is common ground that nothing unlawful occurred.”

and in response to the defendant’s desire to publish the Photographs as soon as possible, found at [35], it:

“..tends to confirm the impression which I have gained from a review of the whole of the evidence, including the confidential material, namely that the defendant’s wish is simply to satisfy the interest of its readership in the private peccadilloes of the rich and famous or (in this case) of those associated with them, rather than to contribute, as watchdogs, to public debate.”

and regarding Miss Winslet’s children, at [36] (see also [39] where the risk of harm to children may tip the balance):

“..There is real reason to think that a grave risk would arise as to Miss Winslet’s children being subjected to teasing or ridicule at school about the behaviour of their newly acquired step-father, within a short period after his arrival within their family, and that such teasing or ridicule could be seriously damaging to the caring relationship which, on the evidence, the claimant is seeking to establish with them.”

that the claimant was not a public figure [38] and while there was no misconduct in the way the defendant obtained the Photographs:

“..the absence of misconduct by the defendant is not a factor which counts positively towards a conclusion that its Article 10 rights should prevail over the claimant’s Article 8 rights, even if a finding of such misconduct might tend the other way.”

His Honour’s overall finding was, at [41], that:

“..taking fully into account the uncertainties arising from the early interlocutory stage at which this application has to be decided, I have nonetheless come to the clear conclusion that this is a case in which the claimant is more likely than not to succeed at trial in vindicating his Article 8 rights as against the defendant’s Article 10 rights.”

ISSUE

This decision was a comprehensive analysis  of the facts in the context of the established principles found in the leading authorities including  ETK v News Group, especially McKennitt v Ash, Von Hannover (for the process a court is to undertake in evaluating the evidence) as well as reference to Campbell v MGN and Douglas v Hello (amongst others).  An interesting aspect of this case was that the court had to consider how to deal with the publication of the private photographs on Facebook and its change of settings.  Facebook’s privacy policy, its change of settings and the confusion many of its users have in managing their accounts to reflect their preferences is a live issue and a complication that does not exist in the non social media sphere. As such it is attracting more analysis by the courts and will necessarily be an intrinsic part of privacy jurisprudence in the future given the scope of privacy breaches through the use of social media as a mode of publication/disclosure.

This decision also contains a very careful analysis of what constitutes public domain in the privacy context in general and regarding publication on the Internet in particular.  The understanding of what constitutes the public domain as a legal concept is, in my experience, poor.  Determining whether information is in the public domain is not a matter of simply establishing it has been released to a third party.  There is a significant body of authority on this issue, much pre dating the Internet.

The law relating to to the grant of injunctive relief in misuse of private information continues to evolve in the UK.  This case is a valuable contribution to that jurisprudence, particularly regarding the protection of those in (or in this case not really in) the public spotlight.  As the court intimated, at [17], the approach taken by the courts in protecting privacy of public figures has changed in the recent past. It is likely that this area will be the subject of continued development.

To the extent the analysis in RocknRoll is clearly referable to Articles 8 and 10 of the UK Human Rights Act it is of limited direct utility in Australia.  That said, the consideration of the broader equitable principles  may be relevant in Australian actions alleging breach of confidence involving the misuse of private information.  The equitable principles are analogous and it is relevant to note that the majority of the Victorian Court of Appeal in Giller v Procopets specifically relied upon Campbell v MGN and Douglas v Hello in broadening the scope of a breach of confidence action to include misuse of private information. The principles enunciated in those cases remain touchstones in UK privacy jurisprudence.

This (and other) authority may be very relevant in the event that the Federal Government institutes the mooted statutory right to privacy (depending of course on the way the tort is framed).