Has the Weller case created an image right in relation to the facial expressions of children?

17 April 2014

The singer Paul Weller, acting on behalf of three of his children, was successful in his privacy action against Associated Newspapers Limited (ANL) in relation to seven unpixellated photographs of the children and their father out shopping on a public street and relaxing in a café in Los Angeles.

The photographs, in particular, showed the faces of all three children. They were published on Mail Online on 21 October 2012.

In support of the action the Wellers gave evidence that they had deliberately tried to keep photographs of their children's faces out of the public domain and would have refused to give consent for publication of the photographs had they been asked. They relied upon their concerns for the safety and security of their children and stated that their main purpose for bringing the action was to ensure that the children were left alone as they grew up.

In defence ANL argued that the photographs were obviously taken in a public place and merely showed innocuous every day activity. ANL relied upon the fact that the Wellers had themselves put information about and photographs of their children into the public domain and that one of children had once modelled in a well-known magazine called Teen Vogue. In particular, Mrs Weller had tweeted various pieces of private information relating to the twin boys, including photographs of them (albeit never including their faces).  ANL also relied upon the fact that it was lawful to take and publish the photographs under the laws of California (where the photographs were indeed taken) which was relevant to the question of whether there could be a reasonable expectation of privacy in the photographs.

Mr Justice Dingemans held that the children had a reasonable expectation of privacy because the photographs showed their faces, which was considered to be one of the chief attributes of their respective personalities. Although it was lawful to take the photographs of the children and would have been lawful to publish them in California, this did not prevent the children from having a reasonable expectation of privacy in relation to their publication in this jurisdiction. Further, it was held that publication of the photographs in this jurisdiction was unlawful because the children's Article 8 rights outweighed the Article 10 rights of the newspaper. Mr Justice Dingemans found that the balance came down in favour of the children because the photographs showed their facial expressions (and the "range of emotions" that were displayed). In addition he found that the claims for breach of the Data Protection Act were also established.

In total he awarded the children £10,000 – this was split so that the eldest child (16 at the time) was awarded £5,000 damages and the twin boys awarded £2,500 each. This split was based upon the fact that the twins were not found to have suffered any immediate embarrassment from the publication, whereas the eldest child did suffer real embarrassment.

This decision highlights the risks of publishing otherwise innocuous photos of children engaged in day to day activities in public places and appears to create, for the first time, an image right in relation to the facial features of children. The photographs were held to be particularly intrusive because they showed a range of emotions shown by the children on a family outing with their father.

Mail Online have said that they intend to appeal and described this decision as "a worrying development in our law" which seems to have "conferred unfettered image rights for children" even in circumstances where the parents have themselves put and/or consented to private information about their children being published in the public domain.

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