Matthew Rippon : Protecting privacy - how far do we go?

8:09am Tuesday 10th June 2008

OVER recent years there has been a perpetual fight between the forces of privacy and free speech, the former being represented by a multitude of celebrities and the latter by various media.

In a recent case, Mr Justice Patten ruled in favour of Big Pictures Limited and against David Murray, an 18-month-old child pictured in his stroller on the streets of Edinburgh in 2004.

The picture featured in newspapers and tabloid celebrity magazines around the world including the Daily Express, which ran it alongside an earlier quote from JK Rowling, who lives in Edinburgh, in relation to motherhood and family life.

The Murrays objected to the use of the picture and took action.

The claim against Big Pictures initially was struck out, chiefly on the basis that the Murrays, when walking down a public street, could not have "a reasonable expectation of privacy".

It seemed to me that there must be a difference between the transient memory of the passing public and the long lens of a paparazzo camera that records the activity and communicates it via a network of distribution channels to a worldwide audience.

Fortunately for wee David, his mother is not merely another d-list celebrity, but a woman of considerable wealth and power who wouldn't let the point go. The Murrays appealed the decision, which was struck down by the Court of Appeal in a later judgment. It focused on the expectations not of David's parents, or even the family, but on those of David as a vulnerable individual in his own right.

The Court of Appeal distinguished this case from those of famous people trying to preserve the privacy of their personal lives even where aspects are played out in public.

I'm not convinced that goes far enough.

JK Rowling, as an example, may be famous and court publicity to promote her writing and the causes she supports, but is otherwise a private and cautious person.

Why shouldn't she have the right to walk down the street without featuring in the following week's celeb magazines?

Attend a launch party or make a speech and you open yourself up to comment.

Walk to the shops to buy a paper or collect the milk from your doorstep, and I say you should have the right to some degree of protection.

* Matthew Rippon is a partner at BHP Law, specialising in intellectual property and technology work. Call him on 01325- 376524 or email MatthewR@bhplaw.co.uk

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