Embarrassing photos: Mr RocknRoll wins privacy battle with the Sun

10 January 2013

Ned RocknRoll (aka the new Mr Kate Winslet) won a High Court battle this week against the Sun newspaper to stop the tabloid printing photos that were posted on Facebook. The semi-naked photos of Mr RocknRoll had been taken by a friend at a private 21st birthday party a few years ago, and were described as “innocent but embarrassing”. 

The Sun argued that Mr RocknRoll had “propelled himself into the position of public figure” after marrying Kate Winslet and that photos, which had been discovered on a publicly accessible Facebook profile earlier this month, were already publicly available, and therefore publication of the photos would be justified.

Although we are still waiting to hear the reasons for the decision, I am not surprised that Mr Justice Briggs found in favour of Mr RocknRoll and extended the privacy injunction this week.

The starting point, in my view, is that the photos were taken at a private party and not for public consumption. To publish the pictures would therefore amount to an intrusion.

The treatment of material already available in the public domain was dealt with in Spycatcher (1991) and in Douglas v Hello (2008) (where it was recognised the photos can often be more intrusive than a verbal or written description of private facts). In the Douglas case, Lord Nicholls said:

“In some instances…information may be in the public domain and not qualify protection as confidential and yet qualify for protection on the ground of privacy. Privacy can be invaded by further publication of information or photographs already disclosed to the public”.

The courts have subsequently recognised more and more that the law of privacy focuses on human autonomy, dignity and intrusion with the consequence that further publication of material (even if already in the public domain) may still have the capacity to do harm. With this in mind, I can understand why Mr RocknRoll was keen to protect himself and his family from press intrusion in respect of embarrassing private photos which were not intended to be seen by the world at large. It is however possible that the Sun were given some encouragement by the fact that it was able to publish photos last year of Prince Harry’s antics in a Las Vegas hotel room partly because the photos were already available at the time on the internet. 

The other interesting aspect to Mr RocknRoll’s case is the question of whether these photos were in the public interest. The courts applied the public interest exception in favour of the press in respect of former England football captains, Rio Ferdinand and John Terry, partly because it was deemed that they held positions in which higher standards of conduct were expected of them by the public.  The court also refused ex-England Manger, Steve McLaren, an injunction in 2012 in respect of an article published in the Sun about an extra-marital relationship and, in doing so, said it was “able to contend that the claimant belongs to the category of those from whom the public could reasonably expect a higher standard of conduct”.

Mr RocknRoll does not fall into that category just because he is married to Kate Winslet and he is no Prince Harry! I therefore cannot see any public interest in semi naked photos of him being published and I welcome the decision of Mr Justice Briggs to extend the privacy injunction.

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