Any Right to be Private in Public?

A recent case involving the publishing of a covert photograph taken of JK Rowling’s then 20 month-old son has been decided against the famous author in an important decision on how far the right to privacy extends to public places.

JK Rowling and her husband raised the action against the Sunday Express (which printed the pictures) and the agency which took them. The action against the newspaper was settled, but the agency, Big Pictures, contested it successfully.

The legal framework is provided by the European Convention on Human Rights (which is incorporated into UK law by the 1998 Human Rights Act), and more specifically Article Eight, which provides that everyone has the right to respect for his private and family life.

Although, historically, there has never been a law of privacy as such in the UK, the incorporation of the Convention into UK law, together with the introduction of privacy-related legislation, such as the Data Protection Act, has meant that wrongful disclosure of private information, such as photographs in newspapers, can be actionable.

The decision in the JK Rowling case has surprised many. The European Court of Human Rights had taken a very wide view of the application of Article Eight in Von Hannover versus Germany when holding that photos of Princess Caroline of Monaco in her daily life fell within the scope of private life.