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.