Where should the balance be struck between press freedom and individual privacy rights? The Court of Appeal addressed that burning issue in a case concerning a couple who were photographed by paparazzi on a beach in Barbados.
The couple became of interest to the press after their company secured government contracts for the supply of personal protective equipment during the COVID-19 pandemic. When agency photographs of them on the beach appeared in the press, they launched proceedings against a national newspaper publisher, alleging misuse of private information. Pending a trial of their claim, they sought an interim injunction preventing republication of the photographs.
They stressed that they were at the time engaged in an essentially private activity. In the company of family and friends, including children, they were attending a meal to celebrate their daughter’s birthday. They had been targeted by paparazzi and the photographs had been taken covertly, without their consent, by means of a long-distance lens. Their publication was, they argued, unnerving and a particularly intrusive infringement into their private lives.
Following a hearing, a judge acknowledged that it did not follow from their presence on a public beach that they had no reasonable expectation of privacy. If a person is the subject of a lengthy and intrusive campaign by paparazzi, that might give them such a reasonable expectation, even in respect of events that occur in a public place. It was relevant that the photographs were taken without consent and from a distance and that the couple had been pursued by paparazzi during the previous two or three days.
In refusing to grant the injunction sought, however, he noted that private CCTV and camera phones are ubiquitous and that anyone who ventures out in public may be captured on such devices. There was a demonstrative and performative element to the couple’s arrival on the beach by jetski. The published photographs simply represented what anyone might have seen had they been present on the beach at the time. On balance, he found that the couple were unlikely to establish at trial that they had a reasonable expectation of privacy.
Dismissing their challenge to that outcome, the Court detected no error in the judge’s approach or in the weight he had given to various parts of the evidence. Given that the photographs had already appeared in the press, both in print and online, he was entitled to find that their republication would cause the couple little additional irreparable harm and that the balance thus came down in favour of maintaining the status quo pending trial.