10 December 2018 - Article
A privacy injunction is a powerful tool for those who wish to keep their privates private. And a recent case in the High Court on an application for an interim privacy injunction has helped to reassert the principles applicable. You might have thought the position was clear. An individual couldn't possibly have a reasonable expectation of privacy, allowing them to prevent the publication of images of when (1) they have already been published on Facebook; (2) they are married to one of the country's leading actresses; and (3) they have changed their name from something rather un-headline grabbing, to Ned Rocknroll. Or could they? Mr Edward Rocknroll is the nephew of entrepreneur and household name Richard Branson, working at his space travel company Virgin Galactic as its Head of Marketing Promotion and Astronaut Experience. To add to his celebrity credentials, last year he married the British actress Kate Winslett and is now step father to her two minor children. To anyone familiar with the British media, it comes as no surprise the press were keen to look around for any interesting material about the actress's new fella. And it was The Sun who managed to dig up some photographs of Mr Rocknroll which the judge, Mr Justice Briggs, described as depicting him ‘behaving in a foolish and immature manner when half naked'. Nothing so strange there, given thatthis was a couple of years ago, at a private fancy dress, 21st birthday party (something we're all guilty of, to some extent or another, surely…) The photographs, taken by another guest at the party, were posted on his Facebook page and could until recently, be viewed by his entire friends list, totalling approximately 1,500 people, albeit not by the general public. (A reminder to us all to check and if necessary, tighten up our Facebook privacy settings). But when The Sun obtained the photographs and notified Mr Rocknroll that it wished to publish them — albeit pixillating his lower half – together with a description of their contents, the bashful boy obtained an assignment of the copyright in the photographs from the other party goer, and reached for his lawyer. The lawyer in turn, made an urgent application for an interim privacy injunction. Mr Justice Briggs was able easily to find that the claimant had a reasonable expectation of privacy with regard to the photographs – and their content. They were taken at a private event, in a private venue and depicted him partially naked. The Judge did not accept the defendant's argument that the fact that they may have been taken with his consent amounted to some form of implied universal consent including for their publication in a national newspaper. Nor did he buy the argument that Mr Rocknroll had waived any right to privacy by marrying a famous actress and experiencing national publicity as a result. The suggestion that the conduct depicted in the photographs was such that could be legitimately criticised by the public, and thus contributed to a debate of general interest, got equally short shrift, and certainly didn't result in any balance between Article 10 (free speech) and Article 8 (privacy) falling in favour of the former. Indeed, in balancing the respective rights at play, the judge concluded 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'. The fact that the photographs had been on Facebook did not mean that they had come into the public domain so as to be beyond recall. To the contrary, given the sensitive and embarrassing nature of the images, and given the way that the law of privacy has evolved, one had to consider, if looking to grant or refuse an injunction, whether there was ‘anything by way of privacy left to be protected'. Here there certainly was. A further important factor taken into account was the potential for embarrassment and bullying that any unauthorised publication of the material could have on Ms Winslett's young children. ‘Whatever may be the difficulties facing a mother in bringing up children while, at the same time, pursuing a career as an actress, whether on stage or in film that provides no possible reason for exposing her children to a real risk to additional embarrassment or upset from the nationwide publication of photographs (or their contents) depicting their other carer behaving in a foolish and immature manner when half naked.' These words, and the judgment as a whole, will give comfort to many of our clients that they are not necessarily deprived of the valuable resource of a privacy injunction pending trial, simply because they or their spouse or partner, is to some extent in the public eye. Privacy is a valuable commodity and we are all entitled to its protection.