2. Interference with the person, defamation, right of privacy

Transcription

1 2. Interference with the person, defamation, right of privacy a) Interference with the person (1) Wilson v Pringle [1987] QB 237 (CA) (battery) Facts: The claimant (C) and the defendant (D), both aged 13, were schoolboys in the same class. C claimed that he was seriously injured because D had intentionally jumped on him. D claimed that he had merely pulled of C's schoolbag in the course of ordinary horseplay and that as a result C had fallen to the ground and sustained his injuries. Croom-Johnson LJ The action of trespass to the person, in its sense where there is an assault to or a battery of the plaintiff, is of great antiquity. ( ) Tuberville v. Savage (1669) 1 Mod. 3 was an action for assault. The defendant clapped his hand upon his sword and said to the plaintiff, "If it were not assize-time, I would not take such language." The court ruled that there was no threat, and accordingly no assault. This case is authority that there must be not only a deliberate threat (in an assault) or a deliberate touching (in battery) but also hostile behaviour. If the intention is obviously hostile, that will suffice, but it was recognised that there are many circumstances in life where contact with one's fellow men is not only unavoidable but even if deliberate may also be innocent. It was said, "if one strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strike at another and miss him, this is an assault:..." Cole v. Turner (1704) 6 Mod. 149 was an action in trespass for assault and battery. Holt C.J. ruled that the least touching is a battery if it is done in anger, but that touching without violence or design of harm is no battery, and that violence in a rude and inordinate manner is a battery. Again, the case is authority for the proposition that for a battery there must be either an intention to harm or overt hostility. It is not possible, even if it were desirable, to ignore the distinction between torts of negligence and torts of trespass strictly so called. This distinction has to be borne in mind in view of a submission made on behalf of the defendant, which would have had the effect of blurring the lines of demarcation between the two causes of action. In a situation (such as the present) in which both causes of action are sought to be raised it is necessary to be as precise as possible in seeing which of the facts giving rise to that situation are appropriate to which cause of action. The first distinction between the two causes of action where there is personal injury is the element of contact between the plaintiff and defendant: that is, a touching of some sort. In the action for negligence the physical contact (where it takes place at all) is normally though by no means always unintended. In the action for trespass, to constitute a battery, it is deliberate. Even so it is not every intended contact which is tortuous. Apart from special justifications (such as acting in self-defence) there are many examples in everyday life where an intended contact or touch is not actionable as a trespass. These are not necessarily those (such as shaking hands) where consent is actual or to be implied. They may amount to one of the instances had in mind in Tuberville v. Savage, 1 Mod. 3 which take place in innocence. A modern instance is the batsman walking up the pavilion steps at Lord's after making a century. He receives hearty slaps of congratulation on his back. He may not want them. Some of them may be too heavy for comfort. No one seeks his permission, or can assume he would give it if it were asked. But would an action for trespass to the person lie? Another ingredient in the tort of trespass to the person is that of hostility. The references to anger sufficing to turn a touch into a battery (Cole v. Turner, 6 Mod. 149) and the lack of an intention to assault which prevents a gesture from being an assault are instances of this. If there is hostile intent, that will by itself be cogent evidence of hostility. But the hostility may be demonstrated in other ways. ( )

2 2 Although we are all entitled to protection from physical molestation we live in a crowded world in which people must be considered as taking on themselves some risk of injury (where it occurs) from the acts of others which are not in themselves unlawful. If negligence cannot be proved, it may be that an injured plaintiff who is also unable to prove a battery, will be without redress. b) Right of privacy? (2) Kaye v Robertson [1991] FSR 62 (CA) Facts: Kaye (K) was a well-known actor who had undergone very extensive surgery on his head after an accident. The first defendant (D) was the editor of "The Sunday Sport," a tabloid renowned for far-fetched "scoops" and containing advertisements for pornographic material. While K was in hospital recovering from his injuries, journalists from the first defendant's newspaper gained access to his private hospital room, ignoring the notices prohibiting such entry. They interviewed K at length and took photographs using flash photography before being ejected by security staff. D then announced that they intended publishing the article on the basis that K had consented to the interview. K sought an interim injunction to prevent publication, alleging malicious falsehood, libel, passing off and trespass to the person. He claimed that he had not consented to the interview and had anyway (to D's knowledge) not been in a fit state to consent; shortly after the "interview" he had no recollection of the incident. Glidewell LJ It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals. In the absence of such a right, the plaintiff's advisers have sought to base their claim to injunctions upon other well-established rights of action. These are: 1. Libel 2. Malicious falsehood 3. Trespass to the person 4. Passing off. The appeal canvassed all four rights of action, and it is necessary to deal with each in turn. 1. Libel The basis of the plaintiff's case under this head is that the article as originally written clearly implied that Mr. Kaye consented to give the first "exclusive" interview to Sunday Sport, and to be photographed by their photographer. This was untrue: Mr. Kaye was in no fit condition to give any informed consent, and such consent as he may appear to have given was, and should have been known by Sunday Sport's representative to be. of no effect. The implication in the article would have the effect of lowering Mr. Kaye in the esteem of right-thinking people, and was thus defamatory. The plaintiff's case is based on the well-known decision in Tolley v. J.S. Fry & Sons Ltd. [1931] A.C Mr. Tolley was a well-known amateur golfer. Without his consent, Fry published an advertisement which consisted of a caricature of the plaintiff with a caddie, each with a packet of Fry's chocolate protruding from his pocket. The caricature was accompanied by doggerel verse which used Mr. Tolley's name and extolled the virtues of the chocolate. The plaintiff alleged that the

3 3 advertisement implied that he had received payment for the advertisement, which would damage his reputation as an amateur player. The judge at the trial ruled that the advertisement was capable of being defamatory, and on appeal the House of Lords upheld this ruling. It is in my view certainly arguable that the intended article would be libellous, on the authority of Tolley v. Fry. I think that a jury would probably find that Mr. Kaye had been libelled, but I cannot say that such a conclusion is inevitable. It follows that I agree with Mr. Milmo's submission and in this respect I disagree with the learned judge; I therefore would not base an injunction on a right of action for libel. 2. Malicious Falsehood The essentials of this tort are that the defendant has published about the plaintiff words which are false, that they were published maliciously, and that special damage has followed as the direct and natural result of their publication. ( ) In the present case I have no doubt that any jury which did not find that the clear implication from the words contained in the defendants' draft article were false would be making a totally unreasonable finding. Thus the test is satisfied in relation to this cause of action. As to malice I equally have no doubt from the evidence, including the transcript of the tape-recording of the "interview" with Mr. Kaye in his hospital room which we have read, that it was quite apparent to the reporter and photographer from Sunday Sport that Mr. Kaye was in no condition to give any informed consent to their interviewing or photographing him. 3. Trespass to the person It is strictly unnecessary to consider this cause of action in the light of the view I have expressed about malicious falsehood. However, I will set out my view shortly. The plaintiff's case in relation to this cause of action is that the taking of the flashlight photographs may well have caused distress to Mr. Kaye and set back his recovery, and thus caused him injury. In this sense it can be said to be a battery. Mr. Caldecott, for Mr. Kaye, could not refer us to any authority in which the taking of a photograph or indeed the flashing of a light had been held to be a battery. Nevertheless I am prepared to accept that it may well be the case that if a bright light is deliberately shone into another person's eyes and injures his sight, or damages him in some other way, this may be in law a battery. But in my view the necessary effects are not established by the evidence in this case. Though there must have been an obvious risk that any disturbance to Mr. Kaye would set back his recovery, there is no evidence that the taking of the photographs did in fact cause him any damage. 4. Passing off ( ) Bingham LJ Any reasonable and fair-minded person hearing the facts which Glidewell L.J. has recited would in my judgment conclude that these defendants had wronged the plaintiff. I am therefore pleased to be persuaded that the plaintiff is able to establish, with sufficient strength to justify an interlocutory order, a cause of action against the defendants in malicious falsehood. Had he failed to establish any cause of action, we should of course have been powerless to act, however great our sympathy for the plaintiff and however strong our distaste for the defendants' conduct. This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens. This has been the subject of much comment over the years, perhaps most recently by Professor Markesinis (The German Law of Torts, 2nd edn., 1990,page 316) where he writes: "English law, on the whole, compares unfavourably with German law. True, many aspects of the human personality and privacy are protected by a multitude of existing torts but this means fitting the facts of each case in the pigeon-hole of an existing tort and this process

4 4 may not only involve strained constructions; often it may also leave a deserving plaintiff without a remedy." The defendants' conduct towards the plaintiff here was "a monstrous invasion of his privacy" ( ). We cannot give the plaintiff the breadth of protection which I would, for my part, wish. The problems of defining and limiting a tort of privacy are formidable, but the present case strengthens my hope that the review now in progress may prove fruitful. (3) Michael Douglas v Hello!, [2001] QB 967 (CA, application for interlocutory injunction) Facts: The claimants, Michael Douglas and Catherine Zeta-Jones, applied for an interlocutory injunction against the publication on photographs taken at their wedding at the Plaza Hotel New York on November 2000 in Hello! magazine. At the wedding, only authorised photographers were permitted. The claimants had granted the exclusive right to publish these photographs to OK!, a magazine competing with Hello! Sedley LJ Is there today a right of privacy in English law? 109. The common law, and equity with it, grows by slow and uneven degrees. It develops reactively, both in the immediate sense that it is only ever expounded in response to events and in the longer-term sense that it may be consciously shaped by the perceived needs of legal policy. The modern law of negligence exemplifies both senses The history of the law of confidence, however, while it displays many instances of the first kind of reactivity, has shown little of the second. The courts have done what they can, using such legal tools as were to hand, to stop the more outrageous invasions of individuals' privacy; but they have felt unable to articulate their measures as a discrete principle of law. Nevertheless, we have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy The reasons are twofold. First, equity and the common law are today in a position to respond to an increasingly invasive social environment by affirming that everybody has a right to some private space. Secondly, and in any event, the Human Rights Act 1998 requires the courts of this country to give appropriate effect to the right to respect for private and family life set out in Article 8 of the European Convention on Human Rights and Fundamental Freedoms. The difficulty with the first proposition resides in the common law's perennial need (for the best of reasons, that of legal certainty) to appear not to be doing anything for the first time. The difficulty with the second lies in the word ""appropriate". But the two sources of law now run in a single channel because, by virtue of s.2 and s.6 of the Act, the courts of this country must not only take into account jurisprudence of both the Commission and the European Court of Human Rights which points to a positive institutional obligation to respect privacy; they must themselves act compatibly with that and the other Convention rights. This, for reasons I now turn to, arguably gives the final impetus to the recognition of a right of privacy in English law. (4) Naomi Campbell v MGN Limited [2004] 2 AC 457 (HL) Facts: The claimant (C) is a famous fashion model. In interviews she had always stated that, in contrast to many models, she did not take drugs, stimulants or tranquillisers. This was untrue; she had, in fact, become addicted to drugs. The defendant (M) published in the Mirror an article that disclosed that Miss Campbell was a drug

5 5 addict. It revealed that she was receiving therapy with Narcotics Anonymous and gave some details of the meetings that she was attending. It was illustrated by photographs showing her leaving a Narcotics Anonymous meeting in Chelsea. The Court of Appeal gave judgment for D. On her appeal to the House of Lords C conceded that D was entitled to publish the fact that she was a drug addict. She claimed, however, that, by publishing photographs and details of the meetings, D had gone too far. Lord Nicholls of Birkenhead (minority view) 11 In this country, unlike the United States of America, there is no over-arching, all-embracing cause of action for "invasion of privacy": see Wainwright v Home Office [2004] AC 406. But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions. ( ) In this country development of the law has been spurred by enactment of the Human Rights Act The present case concerns one aspect of invasion of privacy: wrongful disclosure of private information. The case involves the familiar competition between freedom of expression and respect for an individual's privacy. Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state: see La Forest J in R v Dyment [1988] 2 SCR 417, The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence. A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. ( ) 14 This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. ( ) The continuing use of the phrase "duty of confidence" and the description of the information as "confidential" is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called "confidential". The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information. 16 The European Convention on Human Rights, and the Strasbourg jurisprudence, have undoubtedly had a significant influence in this area of the common law for some years. The provisions of article 8, concerning respect for private and family life, and article 10, concerning freedom of expression, and the interaction of these two articles, have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present. Where both are present the courts are increasingly explicit in evaluating the competing considerations involved. ( ) 21 Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. 28 ( ) I prefer to proceed to the next stage and consider how the tension between privacy and freedom of expression should be resolved in this case, on the assumption that the information regarding Miss Campbell's attendance at Narcotics Anonymous meetings retained its private character. At this stage I consider Miss Campbell's claim must fail. I can state my reason very shortly. On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose. Lord Hoffmann (minority view)

6 6 58 The reason why Mr Caldecott concedes that the "Mirror" was entitled to publish the fact of her drug dependency and the fact that she was seeking treatment is that she had specifically given publicity to the very question of whether she took drugs and had falsely said that she did not. I accept that this creates a sufficient public interest in the correction of the impression she had previously given. 59 The question is then whether the "Mirror" should have confined itself to these bare facts or whether it was entitled to reveal more of the circumstantial detail and print the photographs. ( ) 62 In my opinion, it would be inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary. The practical exigencies of journalism demand that some latitude must be given. Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure. And if any margin is to be allowed, it seems to me strange to hold the "Mirror" liable in damages for a decision which three experienced judges in the Court of Appeal have held to be perfectly justified. Lord Hope of Craighead (majority view) 99 The approach which the Court of Appeal took to this issue seems to me, with great respect, to be quite unreal. I do not think that they had a sound basis for differing from the conclusion reached by the trial judge as to whether the information was private. They were also in error, in my opinion, when they were asking themselves whether the disclosure would have offended the reasonable man of ordinary susceptibilities. The mind that they examined was the mind of the reader: para 54. This is wrong. It greatly reduces the level of protection that is afforded to the right of privacy. The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity. 125 Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell's right to privacy that cannot be justified. Baroness Hale of Richmond (majority view) 127 Even the judges know who Naomi Campbell is. ( ) 138 The parties agree that neither right takes precedence over the other. This is consistent with Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe, para 11: "The Assembly reaffirms the importance of everyone's right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value." 147 I start, therefore, from the fact--indeed, it is common ground--that all of the information about Miss Campbell's addiction and attendance at NA which was revealed in the "Daily Mirror" article was both private and confidential, because it related to an important aspect of Miss Campbell's physical and mental health and the treatment she was receiving for it. It had also been received from an insider in breach of confidence. That simple fact has been obscured by the concession properly made on her behalf that the newspaper's countervailing freedom of expression did serve to justify the publication of some of this information. But the starting point must be that it was all private and its publication required specific justification. ( ) 151 The answer which she herself accepts is that she had presented herself to the public as someone who was not involved in drugs. It would have been a very good thing if she were not. If other young women do see her as someone to be admired and emulated, then it is all to the good if she is not addicted to narcotic substances. It might be questioned why, if a role model has adopted a stance which all would agree is beneficial rather than detrimental to society, it is so important to reveal that she has feet of clay. But the possession and use of illegal drugs is a criminal offence and a matter of serious public concern. The press must be free to expose the truth

7 7 and put the record straight. 152 That consideration justified the publication of the fact that, contrary to her previous statements, Miss Campbell had been involved with illegal drugs. It also justified publication of the fact that she was trying to do something about it by seeking treatment. It was not necessary for those purposes to publish any further information, especially if this might jeopardise the continued success of that treatment. 153 The further information includes the fact that she was attending Narcotics Anonymous meetings, the fact that she had been doing so for some time, and with some regularity, and the photographs of her either arriving at or leaving the premises where meetings took place. ( ) 154 Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one's own image: cf Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591. We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it. ( ) 155 But here the accompanying text made it plain that these photographs were different. They showed her coming either to or from the NA meeting. They showed her in the company of others, some of whom were undoubtedly part of the group. They showed the place where the meeting was taking place, which will have been entirely recognisable to anyone who knew the locality. A picture is "worth a thousand words" because it adds to the impact of what the words convey; but it also adds to the information given in those words. If nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place looked like. In context, it also added to the potential harm, by making her think that she was being followed or betrayed, and deterring her from going back to the same place again. 156 There was no need to do this. Lord Carswell 169 In my opinion it is a delicately balanced decision, and the answer to the questions which one must ask is by no means self-evident. My own conclusion is the same as that reached by Lord Hope and Lady Hale. My reasons can be expressed in fairly short compass. Publication of the details about the appellant's attendance at therapy carried out by NA, highlighted by the photographs printed, constituted in my judgment a considerable intrusion into her private affairs, which was capable of causing substantial distress, and on her evidence did cause it to her. ( ) My noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann, also emphasised the importance of allowing a proper degree of journalistic margin to the press to deal with a legitimate story in its own way, without imposing unnecessary shackles on its freedom to publish detail and photographs which add colour and conviction. I do not minimise these factors, which are part of the legitimate function of a free press and require to be given proper weight. 170 In my opinion the balance comes down in favour of the appellant on the issues in this appeal. ( ) I find it sufficient to hold that the information contained in categories 3 and 4, allied to the photographs in category 5, went significantly beyond the revelation that the appellant was a drug addict and was engaged in drug therapy. I consider that it constituted such an intrusion into the appellant's private affairs that the factors relied upon by respondents do not suffice to justify publication. I am unable to accept that such publication was necessary to maintain the newspaper's credibility.

8 8 (5) Michael Douglas v Hello!, [2005] 3 WLR 881 (Court of Appeal, full trial) Judgment of the Court, handed down by Lord Phillips of Worth Matravers, MR 52 Baroness Hale of Richmond said [in Campbell v MGM, A.O.] that the Human Rights Act 1998 did not create any new cause of action between private persons. Nor could the courts invent a new cause of action to cover types of activity not previously covered. But where there is a cause of action the court, as a public authority, must act compatibly with both parties' Convention rights. 53 We conclude that, in so far as private information is concerned, we are required to adopt, as the vehicle for performing such duty as falls on the courts in relation to Convention rights, the cause of action formerly described as breach of confidence. As to the nature of that duty, it seems to us that sections 2, 3, 6 and 12 of the Human Rights Act 1998 all point in the same direction. The court should, in so far as it can, develop the action for breach of confidence in such a manner as will give effect to both article 8 and article 10 rights. In considering the nature of those rights, account should be taken of the Strasbourg jurisprudence. In particular, when considering what information should be protected as private pursuant to article 8, it is right to have regard to the decisions of the European Court of Human Rights. We cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion. 102 To summarise our conclusion at this stage: disregarding the effect of the OK! contract, we are satisfied that the Douglases' claim for invasion of their privacy falls to be determined according to the English law of confidence. That law, as extended to cover private and personal information, protected information about the Douglases' wedding. 118 These decisions are of no more than persuasive authority and some of them have not been without critics. We consider, however, that they reflect the following principles. Where an individual ("the owner") has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner. We have used the term "the owner" loosely. 119 We have concluded that confidential or private information, which is capable of commercial exploitation but which is only protected by the law of confidence, does not fall to be treated as property that can be owned and transferred. We shall explain our reasons for this conclusion when we deal with OK!'s claim. 134 The grant to OK! of the right to use the approved photographs was no more than a licence, albeit an exclusive licence, to exploit commercially those photographs for a nine-month period. This licence did not carry with it any right to claim, through assignment or otherwise, the benefit of any other confidential information vested in the Douglases. In Allen & Hanburys Ltd v Generics (UK) Ltd [1986] RPC 203, 246 Lord Diplock said that a licence "passes no proprietary interest in anything, it only makes an action lawful that would otherwise have been unlawful". 135 As Jacob J pointed out in Isaac Oren v Red Box Toy Factory Ltd [1999] FSR 785, para 28, some statutes expressly give an exclusive licensee of intellectual property the right to sue an infringer. The Copyright, Designs and Patents Act 1988 is an example: see paras 124 and 125 above. In the absence of such a statutory provision a mere exclusive licence to use authorised photographs of an event does not carry with it the right to sue a third party for infringement of a right vested in the licensor to object to the publishing of other photographs of that event. (6) Michael Douglas v Hello!, [2007] UKHL 21 (House of Lords) Lord Hoffmann (majority view)

9 9 124 Is there any reason of public policy why the law of confidence should not protect information of this form and subject-matter? There is in my opinion no question of creating an "image right" or any other unorthodox form of intellectual property. The information in this case was capable of being protected, not because it concerned the Douglases' image any more than because it concerned their private life, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence. Some may view with distaste a world in which information about the events of a wedding, which Warren and Brandeis in their famous article on privacy in (1890) 4 Harvard LR 193 regarded as a paradigm private occasion, should be sold in the market in the same way as information about how to make a better mousetrap. But being a celebrity or publishing a celebrity magazine are lawful trades and I see no reason why they should be outlawed from such protection as the law of confidence may offer. 125 I therefore think that the Court of Appeal was wrong to reverse the judge on this point. (7) David Murray v. Big Pictures (UK) Ltd Facts Davis Murray, the claimant, the son of bestseller author J.K. Rowling, was photographed at the age of 2 while being pushed in a pram by his parents in an open street in Edinburgh. Can he prevent the publication of the photo? Sir Anthony Clark, MR 56. We do not share the predisposition identified by the judge in [66] that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. All depends upon the circumstances. The position of an adult may be very different from that of a child. In this appeal we are concerned only with the question whether David, as a small child, had a reasonable expectation of privacy, not with the question whether his parents would have had such an expectation. Moreover, we are concerned with the context of this case, which was not for example a single photograph taken of David which was for some reason subsequently published. 57. It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That is the context in which the photographs of David were taken.