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No breach of privacy in publication of information that child's father is a prominent politician

20 May 2013. Published by Keith Mathieson, Partner

The Court of Appeal has upheld a High Court judgment that disclosures in the Daily Mail about a child's paternity did not infringe the child's rights of privacy.

The claimant in AAA v Associated Newspapers is a three-year-old girl. Her mother is an unmarried professional art consultant. Her father is a prominent elected politician. Through her maternal step-grandfather she sued Associated Newspapers, publisher of the Daily Mail, over a series of articles which disclosed the identity of her father.

Three of the articles included photographs of the claimant. Nicola Davies J awarded £15,000 damages for breach of the claimant's right of privacy by the repeated publication of the photographs: link to judgment here. But the judge declined to award the claimant any damages for publication of the allegedly private information concerning her paternity. And she also refused to grant any injunction against the defendant, though she accepted an undertaking from it concerning future publication of photographs of the claimant.

The claimant appealed against (a) the refusal to award damages for publication of the private information and (b) the refusal to grant an injunction. The Court of Appeal has dismissed both appeals.

The grounds of appeal

There were four grounds of appeal:

1. The judge failed to make any or any proper assessment of the claimant’s best interests.

2. The judge was wrong to hold that two factors weakened the claimant’s expectation of privacy in this case. These factors were (i) the events at a house party attended by the mother at which she discussed the child's paternity; and (ii) a magazine article based on an interview with the mother which referred to the child's similarity to her father and the fact that he was alleged to be her father.

3. The judge wrongly held that the claimant’s expectation of privacy (weakened as she held it to be) was outweighed by the public interest in the recklessness of the father.

4. The judge was wrong to hold that there was a public domain defence for publication of the defendant’s subsequent articles and that an injunction to prevent any further publication of information about the claimant’s paternity would serve no real purpose.

The Court of Appeal's findings

The Court of Appeal was wholly unimpressed by AAA's grounds of appeal, repeatedly holding that the judge's assessment was beyond challenge.

The case is factually quite involved, but in short, the key points from the judgment are as follows:

  • A balancing exercise between articles 8 and 10 is analogous to an exercise of discretion and an appellate court should not intervene unless the judge has erred in principle or reached a conclusion which is plainly wrong or outside the ambit of conclusions a judge could reasonably reach.
  • The judge was right to attach considerable weight to the child's interests, but having regard to the way the case was put on her behalf, which focussed on the mother's right to decide when the time was right to tell the child who her father was, the judge was entitled to have regard to other factors, including the mother's own conduct and attitudes towards protecting her child from media publicity.
  • The judge was right to conclude that the events at the country house weekend and the mother's participation in a magazine interview were indicative of an ambivalent approach to the confidentiality of the claimant's paternity.
  • The judge was entitled on the evidence before her to find that the claimant's expectation of privacy in her paternity was outweighed by the public interest in the father's reckless behaviour. The claimant was inviting the court to take too narrow a view of "recklessness": it was clear that the judge had in mind that the claimant was alleged to have been the second child conceived as a result of the father's extramarital affairs.
  • There was evidential support for the judge's finding that the information was in the public domain not just because of the Daily Mail's own publications but because it was becoming more widely known. Much remained online and in print irrespective of the Daily Mail's articles; it would be wrong to enjoin Associated when many other media organisations had published the same thing; and it was "fanciful to expect the public to forget the fact that the man who is said to be the claimant's father, and who is a major public figure, has fathered a child after a brief adulterous affair (not for the first time)".

The Court of Appeal was unanimous in concluding that "The core information in this story, namely that the father had an adulterous affair with the mother, deceiving both his wife and the mother’s partner and that the claimant, born about 9 months later, was likely to be the father’s child, was a public interest matter which the electorate was entitled to know when considering his fitness for high public office."

RPC acted for Associated Newspapers in the High Court and in the Court of Appeal.

The Court of Appeal has upheld