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Case Law: King v Sunday Newspapers, Northern Ireland privacy appeal partially
successful
08 April 2011 --
On 15 October 2010 we discussed the first instance judgment of Mr Justice
Weatherup in the case of King v Sunday Newspapers Ltd arising out of the
publication of some 29 articles in the “Sunday World” newspaper. The privacy
claim was partially successful but the harassment claim failed. The plaintiff
appealed and on 31 March 2011, the Court of Appeal in Northern Ireland (Higgins,
Girvan and Coghlin LJJ) gave Judgment allowing the appeal on the privacy issues
but dismissing it on harassment. The Court of Appeal upheld the judge’s finding
that the plaintiff was entitled to bring a claim in respect of the Article 8
rights of his partner and his child as well his own and allowed the appeal in
relation to the identification of the plaintiff’s partner and the publication of
a photograph of them together at a wedding.
Background
The background to the case was controversial. The plaintiff, Drew King had
formerly been charged with murdering a Sunday World journalist, Martin O’Hagan,
who was shot dead near his home in Lurgan, County Armagh, in September 2001. The
murder charges against him and his co-accused were withdrawn in July 2010. Mr
King sought an injunction to prevent publication of private information. An
interim injunction was granted on 11 December 2009 and the case then proceeded
to trial.
The privacy claim concerned information five categories: (1) the address of the
plaintiff; (2) the wedding plans of the plaintiff and his partner; (3) the
partner’s details which include her identification and her workplace and her
family members; (4) the child’s details which concern the identification, the
religion and the christening of the child. (5) the photograph of the plaintiff
and his partner.
The publication information in category (1) - the address – was restrained under
Article 2 on the basis that there was a real and immediate threat to his life
and this was not the subject of any appeal.
In relation to the other categories, the judge dismissed the claim in relation
to wedding plans, the identity of the plaintiff’s partner and the photographs,
holding that there were public interest justifications for publication. However,
he upheld the claims in relation to the publication of details about the
partner’s workplace, family and religion and the identity of the child, its
religion or details of its christening.
Judgment on Appeal
The first issue considered by the Court of Appeal was whether the plaintiff was
the proper claimant in relation to the Article 8 rights of his partner and child
and his partner’s family. The Court agreed with the judge, holding that
“the fact that divulging of private information and material in relation to the
partner and child of the appellant may have entitled them to pursue their own
claim for a remedy does not mean that the appellant does not have a claim. The
fact that the impact of a breach of privacy may be greater in respect of the
other parties in the relationship would be reflected in the assessment of any
compensatory damages but that does not mean that in the present proceedings the
appellant has no cause of action arising out of unjustifiable publication of the
private information in respect of his private relationships …. the judge was
correct in concluding … that the publication of details of family members of a
particular person may engage the Article 8 rights of that person” [20]
The Court of Appeal then went on to consider the “two stage” approach required
in a misuse of private information case. They agreed with the approach of the
English courts that the question as to whether there was a reasonable
expectation of privacy was a matter for the trial judge and could not be
disturbed unless it was a conclusion that no reasonable tribunal could have
reached [25].
In relation to the second question they disagreed with the Judge’s conclusion on
the question of the disclosure of the plaintiff’s partner. On that issue they
gave particular weight to the interests of the child:
“The paramount interest of protecting the child’s identity leads to the
conclusion that the identification of the mother was inappropriate unless there
was some exceptional public interest justifying her identification which would
outweigh the paramount interests of protecting the child … The parent’s
anonymisation is a necessary concomitant of the need to safeguard the child’s
identity” [29]
On a similar basis the Court of Appeal upheld the judge’s conclusion in relation
to the religion of the plaintiff’s partner. In relation to the photographs,
their publication “was a further facet of the unjustifiable invasion of the
child’s privacy” [32]. The Court also held that there was another reason why the
publication of the photograph was unjustified – this was because it must have
been obvious to the newspaper that “the photograph had been taken on a private
occasion and represented private information” [33].
In relation to the harassment claim, the Court adopted the summary of the law
from the English case of Dowson v Chief Constable of Northumbria ([2010] EWHC
2612 [142]). They noted that the appellant had declined to institute defamation
proceedings to challenge the correctness of the robust allegations of serious
criminality against him and concluded that the judge had been correct to
conclude that the appellant had not made out a case of harassment [38].
Comment
As we indicated in our comment on the first instance decision, this is a rare
privacy case in which there has been a full trial. We noted the failure of the
judge to carry out a proper “parallel analysis” and the weakness of his
reasoning on the “identification of the plaintiff’s partner” issue. These
deficiencies were partially rectified by the Court of Appeal which did carry out
a “two stage” analysis of the privacy issues.
We also criticised the judge’s decision on harassment which, once again, did not
involve any “parallel analysis”. The Court of Appeal took the same approach on
this issue – giving considerable weight to the lack of defamation proceedings.
This is surprising as there was no analysis of the reasons why such proceedings
had not been brought – we suspect that financial considerations may well have
been decisive here.
There are two points of more general interest for privacy lawyers which arise
from the Court of Appeal’s judgment.
First, there is the confirmation that a claim can be brought in relation to
interference with the privacy rights of members of a person’s family who are not
before the court. This is often an issue of considerable practical importance –
particularly where there is a threatened publication of private information
which impacts adversely on several family members.
Second, there is the importance given to the interests of the child. The Supreme
Court has recently emphasised the importance of children’s rights in the Article
8 context (see ZH (Tanzania) v Secretary of State [2011] UKSC 4) and such rights
are potentially important in ordinary privacy cases. Here the rights of the
child were the decisive factor in persuading the Court of Appeal to protect the
identity of the plaintiff’s partner. The fact that the publication of private
information will impact on minor children may well be decisive in other privacy
cases.
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