JK Rowling fails in bid to bar press from using photo of son in buggy

In a decision which will be a blow to celebrities campaigning for more stringent privacy laws, Mr Justice Patten ruled that the Harry Potter author's son, David Murray, now aged four, had "no reasonable or realistic prospect" of winning a court injunction to block further publication of the photograph. The author is expected to appeal.

David was two when, in November 2004, a photographer using a long-range lens snapped him in his buggy as he was pushed along a street by his father, Rowling's husband, Dr Neil Murray, with his mother walking alongside.

The family were not aware that the photograph - which was published in a Sunday newspaper in April 2005 - was being taken and did not give consent, the judge told London's High Court.

On behalf of David, the family's lawyers sought an injunction forbidding further publication of the photograph, or any similar photograph of the youngster, without his consent.

They also sued photographic agency Big Pictures (UK) for damages or an account of profits made from selling the snap, alleging breach of confidence, violation of David's basic human right to privacy and "misuse of private information" under the Data Protection Act.

However, stopping David's case in its tracks yesterday, Mr Justice Patten told the High Court in London: "The action has no reasonable or realistic prospect of success, and I propose to strike out the claim."

Describing the case as "unusual", the judge added that David was not alleged to have "suffered any personal distress" as a result of the picture being taken.

He added: "It is obvious that he is not in any sense a public figure and that he was only photographed because of the identity of his mother."

Mr Justice Patten told the court: "The issue for the court... is centred on the degree of protection which someone who is well known or of public interest is entitled to in respect of their private family life.

"The reality of the case is that David's parents seek, through their son, to establish a right to personal privacy for themselves and their children when engaged in ordinary family activities, wherever conducted."

He said JK Rowling accepted that, as a result of her success, there would be "curiosity and even a measure of legitimate interest on the part of the media and the general public in her activities and her appearance".

Nevertheless, dismissing David's claims of breach of confidence and invasion of privacy, Mr Justice Patten said: "There remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy.

"I do not consider that, in this case, the circumstances in which the photograph was taken amount to unfairness."

Celebrities such as the Hollywood star Catherine Zeta-Jones, have raised legal action over their right to privacy. The actress Sienna Miller even collected signatures for a petition to be presented to 10 Downing Street, demanding tighter restrictions on the activities of the paparazzi.

The newspaper industry code of practice says a child under 16 must not be photographed on issues involving their own welfare without the consent of a parent.

Media lawyer Campbell Deane said: "JK Rowling cannot have a reasonable expectation of privacy in a public place. There is no right to privacy in UK law."

JK SPELLS PRIVACY

AUTHOR JK Rowling has a long history of fighting to protect her privacy and that of her husband and three children.

Celebrity magazine OK was rapped by the Press Complaints Commission (PCC) for publishing holiday pictures of the Harry Potter writer in a bikini with her children on a beach.

The PCC ruled the pictures, taken in Mauritius five years ago, were an intrusion of her daughter's privacy.

OK argued they were taken on a public beach.

But the commission ruled the pictures could reasonably have been expected to affect the child's welfare and because they were taken without her knowledge and only because she had a well-known parent.

The commission noted: "She was also of school age and vulnerable to comments from her peers - indeed, the solicitors had said that the girl had been subsequently embarrassed by attention as a result of the photographs and there was no evidence to dispute this.

The PCC also ruled against the Daily Mirror when the author complained the newspaper had identified her London home, potentially threatening her safety. The article contained a photograph of the property, with the name of the road.

She told the PCC that she had received threats at her home and had her fair share of stalkers and obsessive fans.

In her battle to keep her life under wraps, Ms Rowling has always maintained silence about her family and friends.

She has never taken any of her three children to a book launch or signing.

And she fell out with neighbours over her plans for CCTV cameras.