Rowling lost a summary ruling in the High Court over a picture
of her then 20-month-old son David which appeared in the Sunday
Express. Privacy law expert Rosemary Jay says that the judge did
not take into account that celebrities may be more vulnerable to
invasions of privacy than other people.
"It is a really difficult point, but in the end you have to say
that the law is there to protect people," said Jay. "If some people
are more vulnerable than others, should we recognise that and be
prepared to give appropriate protection for that
vulnerability?"
Rowling, who took the case under her married name of Murray, was
walking with her husband and son, who was in a buggy, when the
picture was taken from a distance with a long lens.
"If I was photographed in the street I would be no more than a
piece of street furniture; there would be no breach of my privacy
because nobody would care that I was in that photo," said Jay. "But
the photograph of Mr and Mrs Murray and the child is wholly
different. They are not street furniture; the photographer took
that photograph covertly with a long lens camera specifically to
produce information about them and publicise it to the world at
large because it was information about them as specific living
individuals. That is wholly different to taking a photograph of
someone as they happen to be getting on a bus when you don't care
who they are and no one else will know," she said.
"Mrs Murray and her family are vulnerable to media pressure on
their private space. They may be rich; they may be privileged; but
nevertheless these people are vulnerable, and I think there is a
question of principle there that asks should the law be prepared to
give them additional protection because of that
vulnerability?"
"In the case about the disclosure of Prince Charles' diaries, the
court recognised that for those who live much of their life subject
to the pressure of publicity, private space is particularly
valuable; but this did not feature in the Murray case."
The Sunday Express newspaper settled its case with Rowling,
but the agency which took the photograph, Big Pictures, contested
the case and asked the Court for a summary ruling against Rowling
because it said there were "no reasonable grounds" for bringing the
claim against it.
Justice Patten agreed with Big Pictures and struck out the claim.
He said that the case had no realistic prospect of success.
He said in his ruling that to grant Rowling's child protection
under privacy or breach of confidence laws would define privacy too
widely.
"If a simple walk down the street qualifies for protection then it
is difficult to see what would not," he said. "For most people who
are not public figures in the sense of being politicians or the
like, there will be virtually no aspect of their life which cannot
be characterised as private. Similarly, even celebrities would be
able to confine unauthorised photography to the occasions on which
they were at a concert, film premiere or some similar
occasion."
Patten said that he began his judgment on the case from the point
of view that privacy should not extend so far. "I start with a
strong predisposition to the view that routine acts such as the
visit to the shop or the ride on the bus should not attract any
reasonable expectation of privacy," he said. "It seems to me
inevitable that the boundaries of what any individual can
reasonably expect to remain confidential or private are necessarily
influenced by the fact that we live in an open society with a free
press. If harassment becomes an issue then it can and should be
dealt with specifically."
Jay said that although the Press Complaints Commission's Code of
Conduct for newspapers protects children against press intrusion
more carefully than it protects adults, that did not appear to be
an argument that was made in the course of the case.
The judge considered the possibility of compensation under the Data
Protection Act (DPA) but ruled it out on the basis that no damage
had been suffered by Rowling's child as a result of the
photo.
Section 13 of the DPA says that damage must be shown for
compensation to be allowed. Patten used this in his ruling, saying
that "…[if the] Claimant is entitled to compensation for any damage
or distress caused by a contravention of section 17 it is still
necessary for him to prove that he has suffered either of those
things".
Jay points out that the law treats journalism differently, and that
in cases related to journalism only distress need be shown.
"Section 13, subsection 2(b) says that if contravention of the Act
is in relation to special purposes, which includes journalism, then
an individual who suffers distress only is entitled to compensation
for that distress. So they didn't have to consider the issue of
damage in relation to the infant, they only had to consider the
issue of distress, but the y went on to consider damage" she
said.
In the event the point did not alter the verdict because the
child, at 20 months old, would not even have suffered distress at
the photo's taking or publication.
Rowling will appeal the ruling, asking for a full trial to be
heard.
Editor's note, 09/11/2007: This story has been
amended since it first appeared due to a inaccuracy. Sorry for any
confusion.
