Mr Justice Patten said: "I have considerable sympathy for the claimant's parents and anyone else who wishes to shield their children from intrusive media attention.

"But the law does not in my judgment (as it stands) allow them to carve out a press-free zone for their children in respect of absolutely everything they choose to do."

Mr Justice Patten pointed out that, before the 1998 Human Rights Act, the law did not recognise any such right at all, and there was still no general cause of action for "invasion of privacy".

"If the law is such as to give every adult or child a legitimate expectation of not being photographed without consent on any occasion on which they are not, so to speak, on public business, then it will have created a right for most people to the protection of their image," he said.

"If a simple walk down the street qualifies for protection, then it is difficult to see what would not."

For most people who were not public figures, there would be virtually no aspect of their lives which could not be said to be private.

The judge said the boundaries of what people could expect to remain confidential or private were inevitably influenced "by the fact that we live in an open society with a free press".

There was "an area of routine activity which, when conducted in a public place, carries no guarantee of privacy".

The photo agency was awarded £40,000 interim costs against the Murrays pending the outcome of the appeal and a final costs assessment.

In a statement, Rowling said she and her husband Neil were "disappointed by the judgement, which seems to have misunderstood our claim".

"Our aim has only been to protect our children from press intrusion during their childhood.

"We see no legitimate reason why, as in this case, David, who was less than two years of age at the time, should have his photograph taken and then published in the press.

"We take his, and that of his siblings, privacy and safety very seriously."