Confidentiality: When Does A “Reasonable Expectation” Of Privacy Arise?

Two recent court decisions concerning photographs taken without consent analyse the "reasonable expectation of privacy" test and highlight the demarcation in the law between photographs of individuals engaged in a private activity and a public activity.

The Court of Appeal decision in Murray v Express Newspapers Plc shows how the reasonable expectation of privacy is greater when children are the subject of unwanted publicity.

The first question for the court in deciding whether there has been an infringement of Article 8 (respect for private and family life) is whether there is a reasonable expectation of privacy in the circumstances. Once this is established, the court must decide on the balance between the claimant's right to privacy and the publisher's right to publish.