Murray v Express Newspapers plc & Another is a significant legal case in the UK that examined the scope of privacy rights, particularly concerning children photographed in public places by the media. The dispute arose after covert photographs of David Murray, the infant son of renowned author J.K. Rowling, were taken by paparazzi and published in the Sunday Express. The case raised important issues relating to the reasonable expectation of privacy, the balancing of Article 8 and Article 10 rights under the European Convention on Human Rights (ECHR), and the application of the Data Protection Act 1998.
Facts of Murray v Express Newspapers plc & Another
In Murray v Express Newspapers plc & Another, the photographer (referred to as “D” in court documents) covertly took a photograph of David Murray, the infant son of J.K. Rowling, being pushed in a buggy by his father down a public street in Edinburgh, with his mother walking alongside. The photograph was captured using a long-range lens without the family’s knowledge or consent.
The photograph was subsequently published by the Sunday Express newspaper, provoking legal action brought on behalf of David Murray by his parents as litigation friends. The claimants sued the publisher of the Sunday Express and the individual photographer, alleging breaches of privacy and confidence as well as violations of the Data Protection Act 1998.
While the claim against Express Newspapers was eventually settled, the photographer applied to strike out the claim against him on the basis that the claim disclosed no reasonable cause of action. The case then proceeded to a detailed judicial examination of the issues.
Legal Issues
The principal legal questions raised in Murray v Express Newspapers plc & Another were:
- Reasonable Expectation of Privacy: Did the infant child have a reasonable expectation of privacy when photographed during a routine family outing in a public place?
- Balancing Article 8 and Article 10 Rights: How should the court balance the child’s right to privacy under Article 8 of the ECHR against the newspaper’s right to freedom of expression under Article 10?
- Application of the Data Protection Act 1998: Did the covert photography and subsequent publication constitute unlawful processing of personal data under the Data Protection Act 1998? Was the claim for damages under the Act maintainable?
Court’s Analysis and Findings
Reasonable Expectation of Privacy
The court acknowledged that privacy rights under Article 8 ECHR protect an individual’s private and family life, but the scope of this right is limited in public places. The judge, Patten J, noted that there remains an area of innocuous conduct in a public place which does not attract a reasonable expectation of privacy.
In Murray v Express Newspapers plc & Another, the court analysed the facts in light of previous case law, including Campbell v MGN Ltd and the European Court of Human Rights decision in Von Hannover v Germany. While the Von Hannover case broadened the scope of privacy protection to public figures, Patten J stated that the English courts are bound to follow Campbell, which sets a higher threshold for privacy claims in public settings.
The court further relied on the New Zealand case of Hosking v Runting, which provided a test for privacy based on whether the plaintiff had a reasonable expectation of privacy and whether the publication was highly offensive to a reasonable person. Applying these principles, the court held that in this case, the routine family outing did not constitute a situation where the infant could reasonably expect privacy.
The judgment emphasised that although parents have a strong desire to shield their children from intrusive publicity, the law does not create a “press-free zone” for normal public conduct. The fact that the photograph was taken covertly did not, by itself, establish a reasonable expectation of privacy.
Balancing Rights Under the ECHR
The court acknowledged the tension between the right to privacy under Article 8 and the right to freedom of expression under Article 10 of the ECHR. The decision in Murray v Express Newspapers plc & Another reaffirmed that courts must carefully weigh these competing interests on a case-by-case basis.
In balancing these rights, the court found that the newspaper’s right to publish material related to an innocent family outing in a public place was not outweighed by any privacy rights in this particular context. Consequently, the claim for breach of privacy was dismissed.
Data Protection Act 1998 Claim
The court also addressed the claim under the Data Protection Act 1998. It held that the photograph of David Murray constituted “personal data” and the newspaper was a “data controller.” However, the claim was dismissed because the claimant failed to demonstrate causation or any damage of the kind that Section 13 of the Act allows to be recovered.
Thus, while the Data Protection Act applied in principle, the processing of data through publication was found to be lawful and fair in this instance.
Outcome
In summary, the court in Murray v Express Newspapers plc & Another struck out all claims against the individual photographer, ruling that the infant child did not have a reasonable expectation of privacy in this public setting and that the Data Protection Act claim lacked a basis in damage or causation.
The case therefore represents a clear limitation on privacy claims arising from photographs taken in public places, especially where the conduct is innocuous and non-intrusive.
Conclusion
Murray v Express Newspapers plc & Another remains a leading case on the limits of privacy rights in public places and the media’s right to publish photographs of children. It affirms that while privacy is a fundamental right under Article 8 of the ECHR, it is not unlimited and must be balanced against the right to freedom of expression under Article 10.
This case highlights the nuanced and fact-sensitive nature of privacy claims and serves as a guidepost for courts dealing with similar conflicts between individual privacy and press freedom, particularly concerning children and public photography.