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The Duke and Duchess of Sussex have been given permission to serve a privacy claim brought on behalf of their son Archie on the US arm of Splash News and Picture Agency.

The claim, which the Court allowed to be served in the US at a hearing on the 2nd of September, relates to long lens pictures taken earlier this year, which show the duchess walking with her son in a baby sling, and her two dogs, in Horth Hill Regional Park on Vancouver Island.

The couple, who are now based in Los Angeles and who were recently reported to have founded a yet-to-be-named production company and signed a multiyear deal with Netflix, say that they were “papped” without their consent, and that the photographs are a misuse of Archie’s private information and a breach of his data protection rights.

They have sued on Archie’s behalf as his “litigation friend”, bringing proceedings against the UK arm of Splash, and, now, against its US business.

Their barrister told the Court in London that the pictures were taken during “a private recreational outing on Vancouver Island”.

He said that, the day before the pictures were taken, the photographer was “at the private home of the claimants” and said he was “casing their home, testing his light meter and taking photos through the security fence, so he was not at the park by accident”.

He continued that Splash’s solicitors had suggested in correspondence that “the first claimant (Meghan) knew everything that was going on and was a volunteer in the sense that she carried on walking when she knew she was being photographed”.

The barrister said: “What happened immediately after the photographs were taken is that … they were immediately offered for worldwide syndication to the media and, what’s more, they were then snapped up, in particular by Associated Newspapers and News Group.”

He added: “That conduct, which is essentially the trading of the private information or the personal data, all took place here.”

Mr Barnes said this case was “not the first time” that Meghan, the Duchess of Sussex, had “crossed swords” with the defendants, referring to a previous case which he described as “the Cotswolds drone episode of January 2019”.

The claim joins the Duchess of Sussex’s privacy claim brought in her own right against the publisher of the Mail on Sunday, over a letter written to her father Thomas Markle, as another facet of the couple’s difficult relationship with the media.

The approach taken by the Court to photographs of children is more protective of their rights than that taken to photographs of adultsand underlines the special status that they have in the eyes of the law.

There is effectively no need for a child to rely on the surrounding circumstances to establish an expectation of privacy, and the fact that a photograph was taken without consent (unless the child is genuinely incidental) will usually be enough to establish a claim.