Stoute v News Group Newspapers [2023] EWCA Civ 523: No reasonable expectation of privacy for “performative” acts
Article 8 of the European Convention on Human Rights (“ECHR”) (which the United Kingdom is a party to) provides that“[e]veryone has the right to respect for his private and family life”. As the case of Stoute v News Group demonstrates however, this right is not absolute and is highly fact-specific. This case illustrates the approach to and factors that courts will take into account when balancing Article 8 and Article 10 (right to freedom of expression) rights in the context of granting injunctive relief.
When considering whether to grant an interim injunction to restrain publication of certain photographs, the principal issue in Stoute v News Group was whether the claimants, Mr and Mrs Stoute, were likely to succeed in showing that they had a reasonable expectation of privacy in respect of photographs taken of them by paparazzi on a public beach and published by the defendant News Group Newspapers Ltd (“News Group”) in The Sun on Sunday.
The Court of Appeal upheld the first instance decision to reject the interim injunction application. In short, Mr and Mrs Stoute were not likely to establish a reasonable expectation of privacy because the content of the photographs was what any visitor of the public beach would have seen and photographs did not contain an element of inherently private information. The arrival of Mr and Mrs Stoute on the jet ski to the beach was seen as “demonstrative and performative” by the court, which was taken into account to determine that they were unlikely to establish a reasonable expectation of privacy.
Factual background
Mr and Mrs Stoute set up a personal protective equipment company prior to the COVID-19 pandemic which became successful following the company securing government contracts worth approximately £2 billion. The couple were photographed by paparazzi whilst on holiday in Barbados arriving at a public beach via jet ski and then walking to a restaurant. Mr and Mrs Stoute’s new boat and second home were also photographed. News Group bought the photographs and emailed them to Mr and Mrs Stoute indicating its intention to publish them.
Mr and Mrs Stoute applied for an interim injunction to prevent the publication of the photographs. The injunction was granted in respect of the photographs of the their second home and boat but it was refused in respect of the photographs of them on the beach and out in public. News Group published the photographs of the couple accordingly.
Mr and Mrs Stoute filed a claim for misuse of private information in respect of the published photographs (among other things) and made a further application for an injunction to restrain publication of those photographs until trial. After the High Court refused to grant an injunction, they appealed the decision to the Court of Appeal. We consider the outcomes of both the High Court and Court of Appeal decisions below.
First instance decision
At first instance, Johnson J identified the following issues to be considered:
- whether the application should be entertained in the light of the previous application and decision of Williams J on 31 December 2022 (namely, the interim injunction);
- whether Mr and Mrs Stoute were likely to succeed in showing that the photographs amounted to information in respect of which they had a reasonable expectation of privacy; and
- whether the balance of the risk of injustice fell in favour of granting injunctive relief pending trial.
As to issue 1, Johnson J found that, whilst it is generally contrary to the public interest for the same issue to be relitigated, there may be special cases where the court has discretion to entertain a repeat application. In this instance, the judge considered there to be good reason do so on the basis that: (i) the application had been heard at very short notice; (ii) News Group had chosen to give Mr and Mrs Stoute only two days’ notice of the proposed application; (iii) News Group then initially declined to provide copies of the photographs that were in its possession; (iv) the photographs were disclosed, but less than 24 hours before publication; and (v) the photographs published were different to those provided to the couple.
As to issue 2, Johnson J concluded that Mr and Mrs Stoute were not more likely than not to establish that they had a reasonable expectation of privacy in respect of the photographs on account of the “demonstrative and performative” element of their arrival, by way of arriving via jet ski on a public beach and the lack of any further inherently private information.
On issue 3, Johnson J found that even if Mr and Mrs Stoute could show that they had a reasonable expectation of privacy, the balance fell against the grant of injunctive relief until trial. Granting the injunction would result in a significant interference with News Group’s freedom of expression. The photographs had already been published and any further damage of continued publication could be taken into account when assessing damages.
Court of Appeal decision
The matter before the Court of Appeal was whether Mr and Mrs Stoute were entitled to the interim injunction sought whilst awaiting trial. They submitted that Johnson J had erred in law or principle on two points. Arnold LJ disagreed and the other Justices agreed.
First, it was submitted that Johnson J had wrongly applied a presumption that events which took place in public were not private unless some additional element was present. In LJ Arnold’s view however, Johnson J had not erred because: (i) he had noted that a public location does not, of itself, mean they had no reasonable expectation of privacy; and (ii) although he did refer to an additional element being present in each of the examples he had given, Johnson J made clear that “[i]n the absence of that additional element, information that someone chooses to reveal in public is less likely to be recognised by the law as private”. When read together with the Johnson J’s self-direction that the question was “highly fact-sensitive” and bearing in mind that he went on to take into account other factors, such as Mr and Mrs Stoute being targeted by the paparazzi, Arnold LJ held that the High Court had correctly applied the law.
Second, it was submitted that Johnson J had wrongly held that, because they had no reasonable expectation of privacy vis-à-vis other people present on the beach, they did not have any reasonable expectation of privacy in respect of the publication of photographs of them on the beach in a national newspaper. Mr and Mrs Stoute argued that Johnson J had failed to differentiate between visibility to people who happened to be present on that occasion and publication of the photographs in a national newspaper. Arnold LJ did not accept this, recognising Johnson J had also recognised that what was visible to those on the public beach was relevant on the authorities, but not determinative. Johnson J had also appreciated that the case concerned an application to restrain further publication of the photographs by News Group. Publication of the photographs in a national newspaper was therefore the context for the analysis.
In addition, Mr and Mrs Stoute submitted that Johnson J had given undue weight to some factors and insufficient weight to others. The Court of Appeal found that this was only a viable ground of appeal if it had resulted in the judge’s evaluation being outside the ambit of reasonable decisions open to him. Arnold LJ disagreed that undue weight had been given to the “demonstrative and performative element” of the arrival on the beach via jet ski. He found that this was a legitimate factor to take into account based on case law (citing the European Court’s decision in Lillo-Stenberg (unreported, 16 January 2014)), and noted that Johnson J’s decision was clearly one that was open to him on the facts of the case and that the weight attached to each factor was a matter for his judgment.
Arnold LJ concluded that there had been no error in the determination of the High Court that Mr and Mrs Stoute were unlikely to establish that they had a reasonable expectation of privacy in respect of the publication of the photographs. He said that even if that were wrong, the risk of injustice did not favour an injunction. The photographs had entered the public domain and having been published by major news outlets, the couple would suffer little additional harm which tipped the balance in favour of refusing the injunction.
The appeal was dismissed accordingly, but in doing so, in his final comment he endorsed Johnson J’s statement:
“This does not mean that the defendant or others may publish any pictures of the claimants with impunity. It just means that the claimants have not established their case in respect of the application for an injunction that they have made. It is entirely possible that there are pictures in the possession of the defendant or others which would, if published, amount to an actionable tort.”
Comment
This case provides a helpful overview of the case law regarding the granting of injunctive relief restricting the publication of photographs of individuals in public spaces. Whilst injunctive relief was not granted in this case, as Arnold LJ’s final comment (referred to above) makes clear, there is no carte blanche for individuals to publish photographs of others in public spaces. Instead, the balancing exercise for granting for assessing an individual’s right to privacy under Article 8 of the ECHR is always highly fact-specific.
Co-authored by Xenia Baranova
