Jan 092013
 January 9, 2013  Posted by  Court, Featured News, Non-U.S.

How often have you seen me question a pro-privacy ruling? Not often, right? But a ruling in the UK does have me a bit concerned.

Mike Collett-White reports:

British actress Kate Winslet’s husband won a court battle on Tuesday stopping The Sun newspaper printing photographs of him “semi-naked” at a private fancy dress party several years ago.

Lawyers for Ned RocknRoll, 34, who married the “Titanic” star last month, argued that there was no public interest in the Sun publishing the pictures, that it would be a breach of his privacy and it could lead to Winslet’s children being bullied.

According to the Press Association, the judge at London’s High Court ruled in favor of RocknRoll and ordered The Sun not to publish the pictures pending any trial, adding that he would give the reasons for his decision at a later date.

Read more on Reuters.

What’s interesting about this injunction (to me, anyway) is that the photo had already been publicly available on the Internet for two years. The Drum reports:

RocknRoll, the 34 year old nephew of Sir Richard Branson who changed his name from Edward Abel Smith, sought the injunction after the Sun newspaper attempted to print the image.

He won despite the offending image having been freely available on a friends Facebook page – which had no privacy settings, but have since been removed.

Niri Shan, head of media law at Taylor Wessing, said: “It is the first time that a Facebook page without any privacy settings has been subject of a successful injunction,” he said. “It is surprising that the fact it had been available on a public page for more than two years and could be seen by his 1,500 friends did not carry more weight.

“It is a worrying precedent for the media because Facebook is a big source of information for them.”

As much as I am for pro-privacy rulings, I’m not sure this was a good ruling. If courts are going to grant injunctions based on possible embarrassment to the children of the individual, then we are not really dealing with the adult’s privacy rights.  Should everyone who wants a paper blocked from printing an embarrassing picture that’s been circulating for years be entitled to an injunction, or only those who have children who could be impacted? Should only children of celebrities matter in terms of possible bullying, or all children?

Suggesting that there could be an injunction for pictures that one did not try to block for two years but suddenly finds problematic may be consistent with an EU notion of “right to be forgotten” or “right to delete,” but courts in the U.S. have generally not gone along with this type of thinking. So while UK privacy advocates may cheer this injunction, I’m not sure U.S. privacy advocates should.  Nor do such injunctions properly protect press freedom, as it’s somewhat shocking that the press should not be able to repeat something that has been freely available on the Internet for years.

Justice Briggs said he would reveal his reasons at a later date. I look forward to reading them.

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