![]() Perhaps most significant is this comment: In particular: did the parents previously expose the children to publicity? How private is the occasion being photographed? (Family and sporting activities seem generally off-limits). The overwhelming thrust of the decision, however, is that privacy expectations all depend on the circumstances.The CA seems attracted to a test that says: would you publish this if it involved non-celebrity children? By contrast, the NZ courts seem to accept that there is an element of loss of expectation of privacy just by being a celebrity’s child.It was shortly after he had attempted suicide, a significant difference, I think, given that people seeing the footage would just see a distraught guy with a knife. As is becoming increasingly common, the judgment mischaracterises the Peck case as involving a man caught on closed circuit TV “attempting to commit suicide”.Amusingly, the judgment records that “it is accepted by the plaintiff that he was not himself upset by the taking of the photos.” (When questioned about the issue, he is understood to have said “urf, gesplursh, wheephle” and stuck his fist in his mouth).In NZ, by contrast, after identifying a reasonable expectation of privacy, we ask whether the publicity is highly offensive, raising the bar for plaintiffs. This is a rather nebulous exercise and the CA says little about it, except that it’s arguable. The CA says maybe bubs has a reasonable expectation that photos of him won’t be published, given that they were taken in a clanestine way, by a paparazzi firm, out for commercial gain, knowing that the parents had tried to protect their children’s privacy and would object to the publication. The next stage in UK law is what they call a proportionality analysis, in which privacy rights are balanced against freedom of expression. In the first place, their law simply looks for a reasonable expectation of privacy. The CA notes that the test in the UK is different. ![]() The CA focuses entirely on David’s rights. JK and her hubby have not argued for privacy rights for themselves in this case.Ultimately, the British courts might yet find no liability here. The CA is not saying the Rowlings win, just that they can go to trial.The Court of Appeal has reinstated the case. The judge at first-instance followed Campbell and biffed out the Rowlings’ case. This falls against the backdrop of a clash between the European Court of Human Rights in the Von Hannover case (which held that Princess Caroline and her family have privacy rights even when doing non-embarrassing things in mostly public places, unless the pictures related to some public issue) and the House of Lords in the Naomi Campbell case (which held that even celebrities don’t have privacy rights when they pop out for a pint of milk). You might recall that this case is almost identical to the NZ case of Hosking v Runting, where our CA rejected a privacy claim. And the UK Court of Appeal has just ruled that they have (or rather David has) an arguable case. ![]() She’s sued over the publication of some paparazzi photos of her and her husband on a street pushing a baby buggy containing David, their 19-month old baby.
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