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Celebrity and privacy: 'It’s my right to protect my children'

January 2007 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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Over the past year there has been a noticeable change in attitude by many tabloid newspapers and ‘celebrity' magazines towards the publication of photographs of the children of famous people. As a result, fewer photographs of children are being published and many of those that are published have the children's faces pixellated.

The reasons for the change are not necessarily clear. It may be a combination of factors, such as media organisations not wanting to waste time and costs having to deal with the increase in legal complaints; or, perhaps more importantly, the precedent set by the High Court in the actor Ewan McGregor's case, McGregor and others v Fraser and others, as well as that set by the European Court of Human Rights in Von Hannover v Germany, and the grey area that this leaves in UK law. It is certainly not a change that has been driven by the Press Complaints Commission (PCC), which many consider does not have any bite as it cannot impose any financial sanctions. Whatever the reason for the change, it has been welcomed by many famous parents who believe that the publication of photographs of their children jeopardises their safety and security, and has a negative effect on their welfare.

McGregor and Others v fraser and others

The McGregor case is important because an injunction was granted against the photographic agencies Eliot Press and Fraser-Woodward. This banned further publication of the photographs of McGregor's children, which were taken without their consent while the family were on holiday in Mauritius. Eady LJ also directed that damages be assessed for breach of confidence and, if appropriate, for invasion of privacy and compensation under the Data Protection Act 1998 at a later hearing. The agencies did not contest the claim and the case was subsequently settled, with the agencies (and two national newspapers that were joined into the action by Fraser-Woodward) agreeing to pay undisclosed damages and undertaking not to take further photographs of the children. Commenting on the case, McGregor stated: ‘It's my right to protect my children.'

Von Hannover v Germany

Von Hannover v Germany is also important as it was made clear in this case that a ‘public interest' was required to justify the publication of a photograph of a person who does not hold public office. It was therefore recognised that readers of popular newspapers and magazines are not entitled to know ‘everything' about public figures. The Court agreed that the kind of photographs found in celebrity magazines, whose sole purpose it is to:

‘... satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public.'

It is certainly clear that photographs featuring the children of famous people in no way contribute to a debate of general interest.

In reaching its decision the European Court also considered the ‘context in which the photographs were taken' and ‘the harassment endured by many public figures in their daily lives'. This is especially important in the UK, where the paparazzi are notorious for following famous people from the moment they leave their house in the morning to the moment they return home in the evening. Photographs of famous people with their children, carrying out such mundane activities as walking along the street or playing on the swings in the local park, can be sold for a substantial amount of money.

PCC guidance on photographing children

In the past the PCC has been reluctant to intervene in this area, stating on many occasions that innocuous pictures of children would not normally breach its code of practice. The PCC code provides at clause 6 that:

‘... a child under 16 must not be interviewed or photographed on issues involving their own or another child's welfare unless a custodial parent or similarly responsible adult consents.'

It goes on to say that ‘pupils must not be approached or photographed at school without permission of the school authorities' and that ‘editors must not use the fame, notoriety or position of a parent or guardian as a sole justification for publishing details of a child's private life'.

Therefore, there appears to be a gap in the code relating to the publication of photographs of children per se. Indeed, the PCC has only been keen to intervene where photographs concern the welfare of a child, which is very rare. The PCC has been reluctant to hold magazines and newspapers responsible for simply publishing pictures of children unless the complainant can prove that their children have been particularly upset by the publication of the photographs, as JK Rowling did. Her complaints about photographs which were taken of her eight-year old daughter on holiday were only successful because she could point to the fact that the photographs could reasonably be held to have affected her daughter's welfare. This was because the photographs were taken of the child in her swimwear and she had subsequently been embarrassed by the attention she received at school from her peers.

Other famous parents who have made complaints to the PCC in the past include Alex Kingston and Kate Beckinsale, whose complaints concerned photographs taken of their children while they were walking along the street. Both complaints were rejected on the basis that they were taken in a public place and the photographs themselves were relatively anodyne and could not have been said, in the PCC's view, to have affected the children's welfare or any aspect of their private lives. Making a complaint to the PCC may not, therefore, be the best means of recourse.

Conclusion

The recent volte-face by newspapers and magazines certainly reflects a victory for common sense as it really cannot be said to be in the public interest for everyone to know what the children of famous people look like. It will, of course, take time before the media completely change their attitude, and more action may need to be taken against the source of the photographs, the paparazzi, as well as action taken directly by Parliament. However, for the time being at least, the scales appear to be tipped back in favour of protecting children.

Case references

McGregor and others v Fraser and others [2003] EWHC 2972 (QB)

Von Hannover v Germany [2004] ECHR 294

Rowling v OK! Magazine (Press Complaints Commission Report 56, 2001)

Louise Prince, solicitor, Harbottle & Lewis LLP

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