In the battle between protecting children’s right to privacy and allowing publishers to exercise their freedom of expression, recent case law has seen children’s rights triumph.

The case of Weller and Others v. Associated Newspapers Limited involved the publication of unpixelated photographs of three children aged 10 months to 16 years, who also happened to be the children of Paul Weller, an English singer, songwriter and musician. An action was brought for damages for misuse of private information, breach of the Data Protection Act, and an injunction preventing the Mail Online from publishing any further images.

The case saw the Court of Appeal uphold the Court of First Instance’s judgment in favour of the children claimants on the grounds that they had a reasonable expectation of privacy, and their Article 8 right to a private and family life outweighed the defendant’s Article 10 right to freedom of expression and information.

In considering the facts and the earlier judgment, the Court of Appeal confirmed the following:

• Children do not have a separate right to privacy merely by virtue of being a child.
• Several considerations should be taken into account when dealing with children. This means that a child may have a reasonable expectation of privacy where an adult does not.
• The considerations which should be taken into account include attributes of the child, the nature of the activity and the place it happened, the nature and purpose of the intrusion, whether consent was given, and the effect on the child.

Balancing exercise

In considering the balance between the Article 10 right of the media and the Article 8 right of the children, it was emphasised that while a child’s right was not a trump card, the importance of protecting the best interests of a child meant that “where a child’s interests would be adversely affected, they must be given considerable weight”. The Court of Appeal also accepted that it was bound to follow the principles laid out in previous case law, and protect children’s rights in the absence of any “countervailing reasons of considerable force” displacing them.

The case demonstrates the level of protection courts are willing to afford children in safeguarding their right to privacy. Businesses that target children should therefore consider how best to ensure they do not violate children’s rights in carrying out their activities, particularly if their services relate to a child’s image rights.