AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 (20 May 2013)

The mother of a child ('AAA') wrote an anonymous blog about her daughter's life. After a newspaper identified them, the mother sought an injunction. The court granted the injunction, prioritising the child's right to privacy (Article 8) over freedom of expression (Article 10).

Facts

The second claimant, BBB (the mother), wrote an anonymous but popular blog detailing aspects of the life of her daughter, AAA, the first claimant. The blog was shortlisted for an award, which brought it to the attention of a literary agent and the media. The defendant, Associated Newspapers Limited (ANL), publisher of the Daily Mail, subsequently published an article identifying both the mother and child, including a recent photograph of the child. The mother had not consented to this and had asked the journalist not to publish. Following the publication, the child was identified at her school. The claimants sought an interim injunction to prevent ANL from publishing any further information that would or would be likely to identify AAA as the child featured in the blog. An interim injunction was granted at first instance by Nicola Davies J, against which ANL appealed.

Issues

The central legal issue for the Court of Appeal was the proper application of the balancing exercise between the child’s right to respect for her private life under Article 8 of the European Convention on Human Rights (ECHR) and the publisher’s right to freedom of expression under Article 10 ECHR. The key questions were:

Balancing Competing Rights

Did the judge at first instance err by giving excessive weight to the child’s best interests, effectively treating it as a ‘trump card’ over the publisher’s Article 10 rights?

Impact of ‘Public Domain’

To what extent had the mother’s own actions—writing the blog—reduced the child’s reasonable expectation of privacy by placing information about her in the public domain? Did this weaken the claim for an injunction?

Judgment

The Court of Appeal unanimously dismissed the appeal and upheld the interim injunction. Lord Dyson MR, giving the lead judgment, undertook a detailed analysis of the competing rights.

The Balancing Exercise

The court affirmed that the correct approach was the ‘ultimate balancing test’ established in Re S (A Child), which requires a focus on the comparative importance of the specific rights being claimed in the individual case. It was held that the first instance judge had not erred. While a child’s best interests are not the sole, paramount consideration in this context (as they are in family law proceedings), they are a ‘primary consideration’ and must be given ‘particular importance’.

The Master of the Rolls stated: In my judgment, the criticism that the judge elevated the best interests of the child to the level of a paramount consideration, let alone a trump card, is not well founded. She was required by the authorities to treat the best interests of the child as a primary consideration when carrying out the balancing exercise… In my view, that is what she did.

The Child’s Independent Right to Privacy

The court robustly rejected ANL’s argument that the mother’s blogging had effectively waived the child’s right to privacy. It drew a crucial distinction between the actions of the parent and the rights of the child. The child, being of a young age, could not be said to have consented to the publicity or waived her own rights.

Lord Dyson MR reasoned: It is difficult to see how a young child can be said to have ‘courted publicity’ or waived her right to privacy… The fact that a parent has unwisely or even wrongly revealed private information about a child does not mean that the child has no remaining right of privacy in relation to that information which the court will not protect.

The court found that ANL’s publication, by naming and picturing the child, constituted a significant and harmful further intrusion into her privacy that went far beyond what the mother had placed in the public domain via her anonymous blog.

Implications

The decision is a significant authority on the conflict between Article 8 and Article 10 ECHR where children are involved. It firmly establishes that a child possesses a right to privacy that is distinct from their parents’ and cannot be easily waived by a parent’s actions. The judgment reinforces that, in the balancing exercise, the best interests of a child are a ‘primary consideration’ which carries very significant weight, though they do not automatically defeat the right to freedom of expression. The case serves as a strong precedent for the protection of children from media intrusion, even in circumstances where a parent has already introduced a degree of public exposure.

Verdict: The appeal was dismissed. The interim injunction granted at first instance, preventing Associated Newspapers Ltd from publishing information that may lead to the identification of the child claimant, was upheld.

Source: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 (20 May 2013)