Out-Law News 3 min. read
22 Jan 2013, 10:05 am
The Sun had earlier this month sought to publish pictures taken of Ned RocknRoll, who is married to Kate Winslet and is nephew of Sir Richard Branson, at a fancy dress party in 2010.
However, the High Court issued a privacy injunction against the Sun that prohibits it from publishing the photographs after ruling that RocknRoll's privacy rights supersede the paper's right to freedom of expression.
In his judgment, Mr Justice Briggs said that RocknRoll had a "reasonable expectation or privacy in relation to the photographs and their contents". The judge came to this view despite the fact the images had already been published on Facebook by the man who captured them at the 2010 party, James Pope.
The images had been possible to view by the general public after Pope made "recent changes" to his Facebook privacy settings, Pope had claimed, according to the ruling. Prior to that the images had been viewable by approximately 1,500 of Pope's friends on the social networking site, he said. Pope has subsequently deleted the photographs from his Facebook page.
Despite it being possible for a time for the general public to find the images, Mr Justice Briggs ruled that they were not sufficiently in the public domain for RocknRoll's right to privacy to be lost. The judge assessed the circumstances through which the images could be accessed when forming his view on the matter.
"The evidence shows that the photographs have at least now been withdrawn from Mr Pope's Facebook account," Mr Justice Briggs said in his High Court ruling. "There is no evidence to suggest that there had by that time been widespread public inspection of Mr Pope's photo albums on his Facebook account, in which the photographs were to be found. No internet search of the claimant by his name would have revealed them, nor even a simple search or inspection of the wall-page or home-page of Mr Pope's Facebook account."
"The probability is, 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. [The Sun] has, understandably, declined to reveal the method by which it became aware of the photographs. On the present evidence, a tip-off appears to be the most likely source of its information as to their existence and whereabouts," the judge said.
Individuals can lose their right to privacy, which is set out in the European Convention on Human Rights (ECHR) and the UK's Human Rights Act (HRA), if the information they are trying to keep confidential is already in the public domain.
Mr Justice Briggs dismissed the Sun's claim that its freedom to expression rights, also set out in the ECHR and HRA, were weightier than RocknRoll's privacy rights. He said "publication of the photographs or their contents will not contribute to any genuine public debate". In addition, he said publication of the images could not be justified due to the "harm and distress" that event could bring to RocknRoll's step-children.
"Far from pointing to any desire on the part of [the Sun] to contribute to a public debate, that desire to publish as soon as possible tends to confirm the impression which I have gained from a review of the whole of the evidence ... namely that [the Sun'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," the judge said.
"By contrast ... there is in my view good reason to suppose that, if the photographs or a description of their content were published in a national newspaper with the circulation of the Sun, 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, [RocknRoll] is seeking to establish with them," Mr Justice Briggs added.
