That’s Entertainment: Paul Weller Privacy Case and Social Media

In a judgment handed down in April 2014, the High Court found that Associated Newspapers, publisher of MailOnline and The Daily Mail, is liable for misuse of private information for the publication of a series of photographs of Paul Weller’s children taken in public places in America. The Court awarded £10,000 in damages.

The judgment in itself is in many respects unsurprising although Associated Newspapers indicates that it intends to appeal stating that it has “wide-ranging and serious consequences not only for local, national and international digital journalism but for anyone posting pictures of children on social networks”. However, it has wide-ranging implications for publishers here, undermining the argument that those who publish or agree to publication elsewhere of photos of themselves should expect less protection in terms of unauthorised photos. This has been described by some as helping to create so-called “image rights” in  the UK.

Of particular interest in the judgment is the Court’s consideration of prior disclosures via social media and otherwise. For example, the Court considered the following facts:

Paul Weller had “gushed” about his twin children when they were born when promoting his latest album. Further, he spoke about their appearance and discussed a shopping trip with Dylan, the other claimant to the action. However, Weller rejected offers to feature in Lifestyle and Hello! magazine articles;
Hannah Weller published a large amount of information on Twitter as to her children and published some photos, however those photos did not show their facial features although one photo was of the twins naked;
Leah, one of Paul Weller’s other children, posted a picture of the twins, Bowie, on Instagram and probably also on Twitter. This was removed upon request by Paul Weller;
Dylan did one modelling shoot which was then published in Teen Vogue. Further photos of her were feature in a book published by godmother, Mary McCartney. Dylan also used Instagram although she had private profile settings.
None of these factors (separately or combined) was sufficient for the Court to find against the claimants. The Court considered it relevant that at no stage had Paul Weller said anything which indicated that he would consent to photographs of Dylan or the twins being published. Whilst Hannah Weller had shared “a considerable amount of information about the twins growing up”, she had gone to “considerable efforts to avoid showing the faces of any of the children”. The Judge decided that Dylan was not a model in “any meaningful sense” and her Instagram account was private. The Court found that the “photographs [showed] the expressions on faces of children, on a family afternoon out with their father. Publishing photographs of the children’s faces and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights”. He found that there was not a counter-balancing article 10 right to publish.

The case shows it will require extensive disclosures by a claimant for the Court to consider that their right to privacy has been undermined. However, it seems unlikely that any argument based on prior publication of photographs is likely to succeed.