No viable ground for appeal
The Court of Appeal rejected the Stoutes’ submissions that the Judge had given undue or insufficient weight to certain factors in assessing whether there was a reasonable expectation of privacy. This is not a viable ground for appeal unless it compels the conclusion that the judge’s evaluation has been ‘outside the ambit of reasonable decisions’ open to them.
Following the European Court’s decision in Lillo-Stenberg, the ‘demonstrative and performative element’ of the party’s arrival on the beach by jet ski was a legitimate factor to be taken into account in evaluating whether there had been a misuse of private information. The Stoutes submitted that it was ‘victim-blaming’ to suggest they might have chosen a less attention-seeking means of arrival given they had been pursued by paparazzi the previous day. This garnered little sympathy from the Court of Appeal, which held that the couple had chosen to arrive ‘in a manner which was calculated to attract attention’, and this was a legitimate factor to consider as demonstrated in the European caselaw. Whilst the Court noted an increasingly substantial body of domestic caselaw concerning misuse of private information, this case suggests that the UK Courts will continue to have regard to significant judgments of the European Court of Human Rights.
Competing rights and PJS
The Court of Appeal found that even if the Judge had been wrong on this point, he had clearly made no error in concluding that the balance of the risk of injustice favoured the refusal of an injunction. When assessing whether an injunction should be granted to limit the publication of photographs, the case of PJS v NGN should be applied to weigh up the various interests including but not limited to the publisher’s right to freedom of expression, whether the material is already in the public domain, and the effectiveness of damages as a remedy. Given that the photographs had been published three times in two national newspapers, the Judge had been entitled to conclude that the Stoutes would suffer little additional irreparable damage in the event of further publication prior to trial. To put it bluntly – the photographs were out, and the damage had already been done.
The balancing exercise required when applying the law on misuse of private information will always be heavily fact-specific. In line with the Court’s general approach to appeals against evaluative decisions (see Re Sprintroom Ltd) the Court of Appeal will not interfere where it deems that the previous Judge has made a reasonably drawn conclusion.
Nevertheless, in its concluding remarks, the Court of Appeal echoed the Judge’s warning that defendants ought not act with impunity; ‘it is entirely possible that there are images in the possession of the defendant or others which, if published, would amount to an actionable tort’.
For further information on the High Court judgment, see our article here.
To read the Court of Appeal’s judgment, click here.