Court of Appeal

Published May 12, 2008

Murray v Express Newspapers plc and Another

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Laws and Lord Justice Thomas

Judgment May 7, 2008

It was arguable that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication which the person taking or procuring the photographs knew would be objected to on the child’s behalf.

The Court of Appeal so stated in a reserved judgment, when allowing an appeal by the claimant, David Murray, suing by his litigation friends and parents, Dr Neil Murray and Mrs Joanne Murray, from the decision of Mr Justice Patten (The Times August 7, 2007) in which he struck out as unarguable the claim that the second defendant, Big Pictures (UK) Ltd, had infringed his right to privacy under article 8 of the European Convention on Human Rights by the publication in the Sunday Express Magazine of a photograph, taken covertly and without his parents’ consent, which depicted him in a public street with his father and his mother, the author J. K. Rowling, The claim against the publishers of the photograph, Express Newspapers plc, had been settled. For the purpose of the proceedings, the alleged facts were assumed to be true.

Mr Richard Spearman, QC and Mr Godwin Busuttil for the claimant; Mr Mark Warby, QC and Mr Jonathan Barnes for Big Pictures.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that Dr and Mrs Murray were walking in an Edinburgh street. Dr Murray was pushing a buggy with David in it. The defendant took a colour photograph of the family group which was subsequently published in the Sunday Express Magazine.

The photograph showed Mrs Murray walking alongside the buggy and showed David’s face in profile, the clothes he was wearing, his size, the style and colour of his hair and the colour of his skin. It was taken covertly by a photographer using a long range lens.

Neither David, who was about 19 months old, nor his parents were aware that the photograph was being taken, nor were his parents asked for their consent.

It might well be that the mere taking of a photograph of a child in a public place when out with his or her parents, whether they were famous or not, would not engage article 8. However, all depended upon the circumstances.

Explore Law

• Corporate Law

• Public Law

• Columnists

• Law Panel

• Student Law

• Law Reports

Times Recommends

• Iranian bank challenges EU sanctions
• Lord Falconer to join Gibson Dunn
• A Judge by name is new Lord Chief Justice