Out-Law News | 25 Apr 2014 | 10:28 am | 3 min. read
In its judgment, the court upheld claims brought by Weller on behalf of his children for misuse of private information and infringement of the Data Protection Act (DPA). It said that there was no public interest justifying the publication of the photographs by Mail Online, the website operated by the Daily Mail newspaper.
"In my judgment the balance comes down in favour of finding that [the children's rights] override the [newspaper's rights]," said Mr Justice Dingemans. "These were photographs, showing the expressions on faces of children, on a family afternoon out with their father. Publishing photographs of the children's faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of [the children's rights], even though such a publication would have been lawful in California."
"There was no relevant debate of public interest to which the publication of the photographs contributed. The balance of the general interest of having a vigorous and flourishing newspaper industry does not outweigh the interests of the children in this case. I consider that, although the interpretation of the Editors' Code is not for me, this conclusion is consistent with the approach set out in the Editors' Code which recognises that private activities can take place in public, and that editors should not use a parent's position as sole justification for the publication of details of a child's private life," he said.
Associated Newspapers, the parent company of the Daily Mail, said that it planned to appeal the judgment. It had argued that there could be no expectation of privacy given that Weller had discussed the children in interviews and his wife had shared some information on social media. In addition Weller's daughter, Dylan, who was 16 at the time that the photographs were taken, had "modelled for Teen Vogue", it said in a statement.
In its judgment, the High Court first had to establish whether the claim for misuse of private information was valid. If so, it could also uphold the claim for infringement of the DPA. Once it had proved that the Weller family had a reasonable expectation of privacy, the court then had to decide "how the balance should be struck as between the individual's right to privacy on the one hand and the publisher's right to publish on the other". Although it was lawful to take and publish the photographs in California, the court said that this did not prevent the family from "having a reasonable expectation of privacy in relation to their publication in this jurisdiction".
The judge then went on to consider what damages should be awarded to the children, including whether it was appropriate to award "aggravated" damages given the circumstances of the case. Under the DPA, an individual can seek compensation from the data controller for damage caused by the processing of personal data in breach of an obligation found in the Act. If damage is caused, the compensation can take account of any associated distress.
Ultimately, the three children were awarded a total of £10,000 damages for misuse of private information, based on the publication of their facial features and the actual immediate embarrassment suffered by Dylan. However, aggravated damages were not considered appropriate. The judge did not grant an injunction against Mail Online as there was no evidence to suggest that it would publish the photographs again.
"There have been a few judgments outside of the media landscape, but it is still very difficult for claimants to establish that they have suffered an actual loss," said privacy law expert Lore Leitner of Pinsent Masons, the law firm behind Out-Law.com. "The idea here is that it is conceivable that outside the media context businesses could be exposed to liability for misuse of personal data, as opposed to merely regulatory fines. Assessing damage, however, is difficult for claimants."
"If damage is caused, the compensation can take account of any associated distress. Compensation for distress alone is possible in relation to the special purposes of journalism, art or literature. However, in certain situations, these purposes will be exempt from the Act and the right to compensation cannot be exercised. The scope of this exemption was discussed in the Naomi Campbell case, where it was decided that the exemption for journalistic material applied and Campbell's claim for compensation failed. The opposite was true in the Hello! case, where Michael Douglas and Catherine Zeta-Jones were awarded £14,600," she said.