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April 16, 2014updated 22 Apr 2014 7:09pm

Judge orders Mail Online to pay £10k damages to Paul Weller’s children over use of unpixelated pictures

By Dominic Ponsford

Mail Online has been ordered to pay damages of £10,000 for breach of privacy to the children of musician Paul Weller after publishing photos taken of them while on a family outing.

The photographs were taken on 16 October 2012 by an unnamed photographer in Santa Monica, Los Angeles, and showed Weller and the children out shopping in the street and relaxing at a café on the edge of the street.

Dylan Weller was then 16 and was misdescribed in the photographs as Hannah Weller, Paul Weller's wife. The pictures also showed the twins, John Paul and Bowie, who were then aged 10 months.
The claimants said the pictures of the children's faces should have been pixelated and sought damages for misuse of private information and breach of the Data Protection Act.
Mail Online denied  that the publication of the unpixelated photographs was wrong.
In a judgment published today, Mr Justice Dingemans awarded damages of £2,500 each to the two younger children and £5,000 to Dylan.
He said: "In my judgment the balance comes down in favour of finding that the article 8 rights [privacy] override the article 10 rights [freedom of expression] engaged. These were photographs showing the expressions on faces of children, on a family afternoon out with their father.
"Publishing photographs of the children's faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California.
"There was no relevant debate of public interest to which the publication of the photographs contributed.
"The balance of the general interest of having a vigorous and flourishing newspaper industry does not outweigh the interests of the children in this case.
"I consider that, although the interpretation of the Editors' Code is not for me, this conclusion is consistent with the approach set out in the Editors' Code which recognises that private activities can take place in public, and that editors should not use a parent's position as sole justification for the publication of details of a child's private life."
The judge said: "I accept that Paul Weller and Hannah Weller had general concerns about security in relation to their children, but had no specific evidence for those concerns.
"They had the normal concerns of any parent for the safety and security of their children, heightened by the fact that Paul Weller was well known. I accept that the main purpose of Paul and Hannah Weller in bringing the action was to attempt to ensure that the children were left alone as they grew up.

"In my judgment, the photographs were published in circumstances where Dylan, Bowie and John Paul had a reasonable expectation of privacy. This was because the photographs showed their faces, one of the chief attributes of their respective personalities, as they were on a family trip out with their father going shopping and to a cafe and they were identified by surname.

"The photographs were different in nature from crowd shots of the street showing unknown children. The photographs showed how Dylan, Bowie and John Paul looked, as children of Paul Weller. The photographs also showed how Dylan, Bowie and John Paul looked on a family day out with their father."

Weller: 'They overstepped the line by taking pictures of the babies'

Weller said in court that he did not volunteer information about his family when he spoke to the press to promote his records but that he would answer a question if asked.

He said: "My preference would be just to talk about my music but I can also see that would be a very dull interview. It's just chit-chat. There's a big difference between that and someone following you around and taking photos of babies. That's a distinction that needs to be made…

"They overstepped the line with the photos in LA, where they are full frontal pictures of the babies … I don't think the children should be brought into it, not until they are old enough to make their own decisions."

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He said Dylan was "entirely intimidated" by the paparazzo who took the photos without consent.

"Even when I asked him to leave, and I thought he had left, I came out and he is still taking photos of a very frightened 16-year-old holding her baby brother. What kind of person is that anyway?"

Mrs Weller told the court: "The image of their face should be controlled by their parents and not on a national website. It is part of my job as a mother to control who sees that information."

A spokesman for Mail Online said: "We are deeply disappointed by this judgment. At the outset, when concerns were first raised, we made it clear to Mr and Mrs Weller that Mail Online would not re-publish these photos.
"We offered to discuss how we could further reassure them to avoid litigation but their response was to issue proceedings against us on a no-win, no-fee.

"The photographs showed nothing more than Paul Weller and three of his children out and about in public places. There was no claim and no finding that we had followed, harassed or targeted Mr Weller or his children and no request had ever been made to pixellate the children's faces.

"Our publication of the images was entirely in line with the law in California where they were taken by a freelance photographer. 

"The suggestion that children have an expectation of privacy in relation to publication by the media of images of their faces when one child (now nearly 18) has modelled for Teen Vogue, images of the babies' naked bottoms have been tweeted by their mother, and their father has discussed the children in promotional interviews is a worrying development in our law, as it has conferred unfettered image rights on all the children.

"Mail Online is now a global business competing with other US-based websites who operate under the freedom of the First Amendment. 

"Two-thirds of MailOnline's audience are now resident outside of the UK where readers will be baffled if they are denied material freely available on dozens of other sites around the world.

"This judgment has wide-ranging and serious consequences not only for local, national and international digital journalism but for anyone posting pictures of children on social networks. We intend to appeal."


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