A decision to award £10,000 in privacy damages to singer Paul Weller for three of his children would have far-reaching adverse effects on the freedom of the UK media if allowed to stand, the Court of Appeal was told today.
Lawyers for Associated Newspapers said Mr Justice Dingemans had got it wrong in his application of the law and created what was, in effect, an "image right" for the first time.
Weller, the 57-year-old frontman of The Jam and The Style Council, sued Associated after the unobscured faces of daughter Dylan, 16, and 10-months-old twins John Paul and Bowie were "plastered'' over the Mail Online website.
The seven unpixelated pictures appeared in October 2012 after a paparazzo followed the musician and his children on a shopping trip in Santa Monica, California – taking photos without their consent, despite being asked to stop, the court heard.
At the trial in April last year, Associated argued that they were innocuous and inoffensive images taken in public places, and that the Wellers had previously chosen to open up their private family life to public gaze to a significant degree.
But, the judge ruled that there was a misuse of private information and a breach of the Data Protection Act which merited an award of £5,000 to Dylan and £2,500 each to the boys.
He said that the photos were published in circumstances where the children had a reasonable expectation of privacy – and the balance came down in favour of finding that the right to respect for private and family life overrode that to freedom of expression.
Today, Weller's wife Hannah, the mother of the twins, was in court in London when Antony White QC, for Associated Newspapers, told the Master of the Rolls, Lord Dyson, Lord Justice Tomlinson and Lord Justice Bean that the appeal raised issues of some significance for the developing law of privacy.
He said it had been clear for over a decade that there were some restrictions on the legality of taking photos in public places but the boundaries of the restrictions remained unclear, particularly when the photos involved children or were taken abroad – such as in the US where both the taking of the photos and their publication would be lawful.
But an image right was not recognised in English law and, if the decision stood, "would have far-reaching adverse effects on the freedom of the media in this jurisdiction", White said.
The effect of foreign law on the assessment of reasonable expectation of privacy was likely to arise in many cases concerning photographs taken in other jurisdictions because of the increasingly international nature of the content of news organisations' websites.
David Sherborne, for the Wellers, said that the appeal raised no new points of law and the judge's decision was simply the application of a set of facts to well-established legal principles.
"In truth, the appeal can, and should, be disposed of shortly. Not only was it a decision which fell squarely within the discretion which the judge at first instance exercised on a careful and correct analysis of the accepted law in this field, but the primary basis of the appeal, namely that he was wrong in law to find the respondents had a reasonable expectation of privacy, is manifestly unsustainable."
The judges are expected to reserve their decision at the end of the hearing which will run for up to two days.