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JK Rowling and the Chamber of Secrets
By Steven | May 11, 2008
Actually, it’s not a chamber that she’s looking to keep secret. It’s a photograph on the open street.
She’s sued over the publication of some paparazzi photos of her and her husband on a street pushing a baby buggy containing David, their 19-month old baby. And the UK Court of Appeal has just ruled that they have (or rather David has) an arguable case.
You might recall that this case is almost identical to the NZ case of Hosking v Runting, where our CA rejected a privacy claim.
This falls against the backdrop of a clash between the European Court of Human Rights in the Von Hannover case (which held that Princess Caroline and her family have privacy rights even when doing non-embarrassing things in mostly public places, unless the pictures related to some public issue) and the House of Lords in the Naomi Campbell case (which held that even celebrities don’t have privacy rights when they pop out for a pint of milk). The judge at first-instance followed Campbell and biffed out the Rowlings’ case. The Court of Appeal has reinstated the case.
A few quick comments:
- The CA is not saying the Rowlings win, just that they can go to trial. Ultimately, the British courts might yet find no liability here. (Or there might be an appeal).
- The CA focuses entirely on David’s rights. JK and her hubby have not argued for privacy rights for themselves in this case.
- The CA notes that the test in the UK is different. In the first place, their law simply looks for a reasonable expectation of privacy. The CA says maybe bubs has a reasonable expectation that photos of him won’t be published, given that they were taken in a clanestine way, by a paparazzi firm, out for commercial gain, knowing that the parents had tried to protect their children’s privacy and would object to the publication. The next stage in UK law is what they call a proportionality analysis, in which privacy rights are balanced against freedom of expression. This is a rather nebulous exercise and the CA says little about it, except that it’s arguable. In NZ, by contrast, after identifying a reasonable expectation of privacy, we ask whether the publicity is highly offensive, raising the bar for plaintiffs.
- Amusingly, the judgment records that “it is accepted by the plaintiff that he was not himself upset by the taking of the photos.” (When questioned about the issue, he is understood to have said “urf, gesplursh, wheephle” and stuck his fist in his mouth).
- As is becoming increasingly common, the judgment mischaracterises the Peck case as involving a man caught on closed circuit TV “attempting to commit suicide”. No. It was shortly after he had attempted suicide, a significant difference, I think, given that people seeing the footage would just see a distraught guy with a knife.
- The CA seems attracted to a test that says: would you publish this if it involved non-celebrity children? By contrast, the NZ courts seem to accept that there is an element of loss of expectation of privacy just by being a celebrity’s child. This dicta suggests otherwise.
- The overwhelming thrust of the decision, however, is that privacy expectations all depend on the circumstances. In particular: did the parents previously expose the children to publicity? How private is the occasion being photographed? (Family and sporting activities seem generally off-limits).
Perhaps most significant is this comment:
The approved test is not whether a person of ordinary sensibilities would find the publication highly offensive or objectionable, even bearing in mind that young children are involved, but … what a reasonable person of ordinary sensibilities would feel if he or she was placed in the same position as the claimant and faced with the same publicity. The [NZ Court of Appeal] judges did not consider either of the two questions posed through the eyes of the reasonable child, or (more realistically) through the eyes of the reasonable parent on behalf of the child. Although the judge [in this case] recognised the error, he said that neither Lord Hope nor Baroness Hale expressed any doubts about the decision in Hosking v Runting…
This is grist for the mill of those who worry that the test for reasonable expectations of privacy is taking on a subjective flavour, strongly seasoned by the views of those insisting their privacy has been infringed. This is sometimes contrasted with the views of the “reasonable bystander” who might be more detached and objective, and less inclined to see invasions of privacy. The UK court is saying that our judges fell into “error” by not properly taking account of the circumstances of the claimant.
I’m still unconvinced about this. The NZ CA judges did take into account the circumstances of the plaintiff, and in particular, the special position of children. On the other hand, the UK CA insists that its test is an “objective” one (see para 39). I think they would bridle at any suggestion that they were influenced by the particular attitude of the plaintiff (as opposed to the plaintiff’s circumstances) when carrying out their assessment of the reasonableness of the expectation of privacy.
I don’t think there’s a fundamental difference between their approaches. The controlling requirement is the reasonableness of the expectation. That needs to take account of all the circumstances. But ultimately the assessment is an objective one for the judge.
Still, expect commentators to keep making jokes about the ludicrousness of talking about the expectations of the “reasonable drunk” (Andrews) or the “reasonable child molester” (Brown).
Should JK win? I don’t think so. I’m all for hiking privacy protections for children, but I think it goes too far to say that a celebrity’s baby who is in a public place, not doing anything embarrassing, who doesn’t even see the photographer and who won’t even be recognisable from the photos in a year or two, has a reasonable expectation that photos won’t be taken and published. I think our CA got this one right.
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