Semi-naked RocknRoll pics can’t be published in Sun, rules High Court

18 January 2013 by Jim Duffy

Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) – Read judgment

Earlier this month, Rocknroll came to the Chancery Division.  Mr Justice Briggs set out his reasons yesterday for granting Kate Winslet’s new husband an interim injunction prohibiting a national newspaper from printing semi-naked photographs of him taken at a party in July 2010 and later posted on Facebook.

In Edward Rocknroll v. News Group Newspapers Ltd, the Judge decided that the Claimant was likely to succeed at a full trial in establishing that his right to respect for his family life (protected by article 8 of the European Convention on Human Rights) and his copyright over the photographs should prevail over The Sun’s right to freedom of expression (protected by article 10 ECHR).  As such, the photographs cannot be published nor their contents described pending a full trial.

Facebook photos

The photographs were taken by James Pope, a guest at a party the Claimant attended while married to the daughter of an aristocrat.  Unbeknown to Mr Rocknroll (formerly Mr Smith, and nephew of Sir Richard Branson), the photographs were then posted to Mr Pope’s Facebook account.

Last month, the Claimant married Miss Winslet and at some point in early January those old photographs somehow fell into the hands of The Sun.  As the result, Mr Pope said, of changes to privacy settings, the photographs could for a period be seen by anyone with a Facebook account, and not just by his 1,500 ‘friends’.

Unlike in similar previous applications, the Claimant in this case was prepared to disclose his identity and the fact that the photographs showed him partially naked and engaged in what he described as “rather silly, schoolboy-like behaviour.”  Prior to the application, Mr Pope assigned his copyright over the photographs to Mr Rocknroll.

The Court’s approach

The Judge initially left to one side the copyright question and proceeded to balance the parties’ respective Convention rights.  In this, he was guided by the principles set out at paragraph 10 of the Court of Appeal’s judgment in ETK v News Group Newspapers Ltd [2011] EWCA Civ 439.  These can be summarised as follows.

First, does the applicant have a reasonable expectation of privacy?  If not, the claim fails.

Secondly, the question of whether or not there is a reasonable expectation of privacy in relation to the information is a broad one taking account of all the circumstances of the case including the:

1. Attributes of the claimant;
2. Nature of the activity in which he was engaged;
3. Place at which it was happening;
4. Nature and purpose of the intrusion;
5. Absence of consent and whether it was known or could be inferred;
6. Effect on the claimant; and
7. Circumstances in which and the purposes for which the information came into the hands of the publisher.

Lord Justice Ward noted in ETK the test established in Naomi Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 as to “whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, rather than the recipient, would find the disclosure offensive.”

Thirdly, the protection may be lost if the information is already in the public domain.  Here Ward LJ noted that in Browne v Associated Newspapers Ltd [2008] QB 103 at [61] it was decided that there is “potentially an important distinction between information which is made available to a person’s circle of friends or work colleagues and information which is widely published in a newspaper.”

If the Claimant surmounts those first three hurdles, article 8 is engaged.   The court can then proceed to what Lord Steyn termed In Re S (A child) (Identification: Restrictions on Publication) [2005] 1 A.C. 593 at [17] “the ultimate balancing test”, which itself is made up of a list of further considerations:

First, neither article has as such precedence over the other.  Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.  Thirdly, the justifications for interfering with or restricting each right must be taken into account.  Finally, the proportionality test must be applied to each.

Lord Justice Ward in ETK then cited the Princess Caroline of Monaco case, Von Hannover v Germany (2004) 40 EHRR 1 at [76]:

[T]he decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.

Finally, where a decision might affect the right to freedom of expression, the court is bound by section 12(3) of the Human Rights Act 1998, which, as Lord Justice Ward stated, “provides that an interim injunction should not be granted unless a court is satisfied that the applicant is likely – in the sense of more likely than not – to obtain an injunction following a trial.”

The decision

Mr Justice Briggs considered that Mr Rocknroll did have an expectation of privacy so as to engage article 8.  He noted that photographs showed him in the company of his family and friends at a private party on private premises.  “Not least because of his partial nakedness they show him behaving in a manner in which he would be entirely unlikely to behave in public.”

Secondly, the Judge held that “there is nothing in the point that the photographs were taken with his consent.”  By consenting to the photographs being taken it was “most unlikely” that the Defendant would establish at trial that Mr Rocknroll consented to them being published in a national newspaper.

Thirdly, there was “nothing of substance, either in fact or in law” to the Defendant’s submission that Mr Rocknroll had deprived himself of a reasonable expectation of privacy.  His employment as “a not very conspicuous middle manager” at Virgin Galactic “comes nowhere [close] to placing him in that narrow category of persons who although engaged in no public office, may be regarded as having reduced expectations of privacy due to their important role in national affairs.”

It was also relevant that Mr Rocknroll had clearly not courted publicity in relation to his marriage to Ms Winslet, with the press only discovering the private ceremony had taken place after the event.  There had been published unposed photographs of them together, “but not so as to place the claimant in the public sphere in his own right.”

The Judge poured further scorn on the “zone argument” discredited by the Court of Appeal in McKennitt  v Ash [2006] EWCA Civ 1714, whereby once an individual had courted publicity in one area of his life, that area was forever open to press interference.

A particularly interesting aspect of the case was the approach to whether the information had already entered the public domain.  The Judge drew a distinction here (recognised in McKennit at first instance – [2005] EWHC 3003 (QB) at [81]) between leaked confidential commercial information and the misuse of private information.  If a trade secret had been posted on Facebook  then confidentiality might well have been lost.  But:

… the law relating to the misuse of private information has travelled down a different path… the relevant equivalent to the public domain defence is that an injunction may be refused if the defendant can show that there is no longer anything by way of privacy left to be protected.”

He cited John Venables v News Group International [2001] Fam 430 and X & Y (Children) Re [2004] EWHC 762 as authority for the proposition that the “theoretical accessibility was not the correct test, but rather the question was whether an injunction… would serve no useful purpose.”  In this case:

“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.”

There remained, therefore, a useful purpose for the court to serve.  The Judge was “not persuaded that the defendant has anything like a better than even chance” of winning the contribution to public debate argument:

“In the words of Eady J in [Max] Moseley v News Group Newspapers Ltd [2008] EWHC 687 (QB), at paragraph 30: “the only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants.”

The timing of the intended publication shortly after their subject’s wedding to a famous actress was further evidence that “the defendant’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.”

News Group ran the argument that the fact the photographs were posted on Facebook was itself a matter for genuine public debate, but the Judge disagreed without really engaging in the point, saying publication would not “add anything beyond mere titillation.”

Having read a confidential witness statement filed by Miss Winslet, the Judge was also convinced of a grave risk to her children being exposed to teasing or ridicule at school, notwithstanding the several nude on-screen appearances of their mother down the years.  Such upset could prove “seriously damaging to the caring relationship which, on the evidence, the claimant is seeking to establish with them.”  He saw the ETK case as “telling authority” that the risk to children may tip the article 8/10 balance.

Mr Justice Briggs dealt briefly with copyright, an issue that arose fairly unusually in this sort of context as a result of the photographs having been published first on Facebook.  He was satisfied that the Claimant was likely to establish that publication of the photographs (though not a description of their contents) would breach copyright.

Comment

The “ultimate balancing act” between articles 8 and 10 is highly fact-sensitive, so notwithstanding the plethora of cases already decided new factors need to be considered and adjudicated upon in almost every case.  This one follows hot on the heels of the Leveson Report and lies at the interface between social media and the media in its more traditional form.  For some, one of the Report’s weaknesses was its failure to address the relatively new and pervasive forum of free expression the internet provides.  At one stage, the photographs were theoretically available to around one billion people, but it was only when they threatened to pass from the virtual world into the printing press that an issue arose.

In this case the facts, at least at this interim stage, tipped the balance in favour of article 8.  Whilst the Judge seems to have decided that this Claimant is nowhere near famous enough, a similar set of facts with a different subject – Prince Harry springs to mind – might fall on the other side of what is a fairly blurry line.  Ironically, the court proceedings themselves might have brought the claimant into a public sphere that he might not previously have occupied.  Similarly, had the information in this case ‘gone viral’ like the identity of Ryan Giggs did in 2011, there might have been nothing left for the court to protect.

In due course the court will have to consider in more detail the degree to which these photographs may have entered the public domain.  Would it really have taken “an expert”, for example, to trawl through a Facebook user’s ‘timeline’ to find the photographs?  More attention might also be given as to the degree to which the involvement of Facebook in this case is a matter of general public debate.  After all, it seems that even the most banal stories relating to the social media site make the international news on a near daily basis.  Equally, surely such a debate can happily rage on unhindered by the absence of the photographs themselves?

The focus on family members is also interesting.  Article 8 does, after all, purport to protect private, home and family life, and the possible effect upon school-age children seems a powerful consideration to be weighed against the interests of the press in publishing “titillating” photographs.

How these issues are ventilated at trial remains to be seen.

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