Murray (by his Litigation Friends) v Express Newspapers plc and another [2008]

Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child's behalf.

The appellant (M), acting through his parents, appealed against the striking out of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art.8 .

M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M's claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that even if the decision in Von Hannover v Germany had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004], he was bound to follow Campbell in preference. The issue was whether the judge was right so to have concluded.

Held: Appeal allowed.

(1) In deciding whether there had been an infringement of art.8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of…