Two recent court decisions concerning photographs taken without consent analyse the "reasonable expectation of privacy" test and highlight the demarcation in the law between photographs of individuals engaged in a private activity and a public activity.
The Court of Appeal decision in Murray v Express Newspapers Plc shows how the reasonable expectation of privacy is greater when children are the subject of unwanted publicity.
The first question for the court in deciding whether there has been an infringement of Article 8 (respect for private and family life) is whether there is a reasonable expectation of privacy in the circumstances. Once this is established, the court must decide on the balance between the claimant's right to privacy and the publisher's right to publish.
In this case, the Court of Appeal held that it was at least arguable that Murray had a reasonable expectation of privacy. This was because he was a child and his parents had sought to keep him out of the public eye. If the child of ordinary parents could reasonably expect to not have photographs published in the media, then the same principle applied to the child of famous parents.
The private activity engaged in when the photograph is taken can be either recreational or routine, and simple activities such as walking along the street can attract a reasonable expectation of privacy in certain circumstances.
In Wood v Commissioner of Police of the Metropolis the court took a different view because the photographs in question were of Wood attending a company's AGM in his capacity as media officer for his employer. His employer was involved in a public campaign and the police anticipated trouble. It was unsurprising that there was media interest in the event and Wood's reasonable expectation of privacy was limited. The photographs were taken on a public street by police who were carrying out their job and it was held that there was no interference with Wood's Article 8 rights.
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