The Law Of Privacy In England And Wales Part 2
21 May 2008
This week we will be examining Naomi Campbell's long-running dispute with The Mirror newspaper and what effect the decisions have had on subsequent cases before the courts.
Campbell v MGN Limited
The first significant privacy case following the incorporation of the Convention into English law involved supermodel Naomi Campbell’s claims against The Mirror newspaper for truthfully reporting that she was addicted to drugs and undergoing treatment at Narcotics Anonymous. Over the years, Naomi Campbell had given interviews during which she had claimed, falsely, that unlike many of her colleagues in the fashion business she had not succumbed to the temptation of drugs.
In January 2001, The Mirror newspaper obtained information that Naomi Campbell had acknowledged her drug dependency by attending Narcotics Anonymous (“NA”) meetings. The newspaper learned she would be attending a meeting of NA at an address in the Kings Road, London, as a result of which a photographer was sent to take photographs of her as she left the meeting.
An article on the front page followed under the headline “Naomi: I am a drug addict.” It was accompanied by a photograph, the caption to which read “Therapy: Naomi outside meeting.” The article said that she had been attending NA meetings regularly for three months, often attending twice a day. A second picture was published which showed her in the doorway of the building where the NA meeting had taken place. The address was not identified but someone very familiar with that part of the Kings Road could no doubt have recognised it. From general knowledge, the newspaper described the way group counselling works at NA meetings. There were other people in one of the photographs whose faces had been blanked out to preserve their anonymity.
The information contained in the article could be broken down into five categories:
- The fact that Naomi Campbell was a drug addict;
- The fact that she was receiving treatment for her addiction;
- The fact that the treatment was provided by NA;
- Details of the treatment, for how long, how frequently and at what times of day she had been receiving it, the nature of it and extent of her commitment to the process; and
- A visual portrayal by means of photographs of her when she was leaving the building where treatment had been taking place.
Naomi Campbell’s legal advisers accepted that in light of her public lies about drugs, the newspaper was entitled to publish the fact that she was a drug addict and having therapy (the information in categories (1) and (2) above). The dispute therefore centred around the question of whether The Mirror was also entitled to publish the material comprised in the third, fourth and fifth categories.
Campbell was successful at the trial court level and was awarded damages of £3,500. That decision was overturned by the Court of Appeal. But by a split decision of three to two, the House of Lords upheld Naomi Campbell’s appeal and reinstated the Trial Judge’s decision. In addition, the newspaper was to pay the substantial costs of the case.
House of Lords Judgment
All five Law Lords were unanimous as to the principles of law to be applied to the facts. They confirmed there was no general all-embracing cause of action for invasion of privacy but the longstanding common law action for breach of confidence could be extended to protect the unjustified publication of confidential or private information, and given new strength and breadth to accommodate the Convention rights to privacy (Article 8) and freedom of expression (Article 10).
As Lord Nicholls said, the essence of the cause of action is now better described as “misuse of private information” rather than breach of confidence. However named, the elements of the tort are the same:
- Was the published information within the sphere of the complainant’s private or family life?
- If, and only if, that is the case, the intrusion into the complainant’s private life will be capable of giving rise to liability unless the intrusion can be justified.
One must answer the first question in the affirmative in order for Article 8 to be engaged at all. The question to be asked is whether in respect of the disclosed information, the complainant had a reasonable expectation of privacy. In order to satisfy this test, it is not necessary in every case for the disclosure to be highly offensive to a reasonable person. It is merely necessary that, viewed objectively, the complainant should have a reasonable expectation of privacy in relation to the information. The House of Lords did not discuss this point in detail, but stated there is no doubt that information relating to health, personal relationships or finances will easily be found to be private.
If the disclosed information has been identified as private by satisfying the test of reasonable expectation of privacy, a court must then balance the individual’s right to keep the information private against any competing justification for publication. In particular, a court must consider the right to freedom of expression enshrined in Article 10.
Neither of the rights under Articles 8 and 10 take precedence over the other, they are of equal value. As they are competing rights, the Court must determine the extent to which it is necessary to qualify the one right in order to protect the underlying value protected by the other.
The question for the Lords to consider was whether, having regard to the fact that The Mirror was entitled in the public interest to publish the facts of Naomi Campbell’s drug dependency and that she was seeking treatment, the newspaper should have confined itself to these bare facts or was it entitled to reveal more of the circumstantial detail and print the photographs.
Accepting that The Mirror was entitled to publish the information comprised in categories (1) and (2) above, did the further information in categories (3), (4) and (5) retain its character of private information and if so, could the infringement of privacy be justified after balancing Naomi Campbell’s rights with those of The Mirror under the Convention?
The Court of Appeal (in overturning the Trial Judge’s decision in favour of Campbell) had unanimously held that, given that it was legitimate for the newspaper to publish the facts that Naomi Campbell was a drug addict and was receiving treatment, it was not significant to add that the treatment consisted of attendance at meetings of NA. They considered that these details and the photographs were a legitimate, if not an essential, part of the journalistic package designed to demonstrate that Naomi Campbell had been deceiving the public when saying that she did not take drugs.
In the House of Lords however, opinions were divided. The three Judges who formed the majority (thus overturning the Court of Appeal), Lord Hope, Baroness Hale and Lord Carswell, considered the information comprised in categories (3), (4) and (5) was private and constituted an unjustified infringement of Naomi Campbell’s right to privacy. It related to an important aspect of Naomi Campbell’s physical and mental health and the treatment she was receiving for it. Had it not been for her false public statements, the newspaper would not have been permitted to publish any of the information about her addiction or treatment. It was information in respect of which she had a reasonable expectation of privacy.
The newspaper was entitled to publish the information in categories (1) and (2) in order to set the record straight but it was not entitled to go further. In particular, the publication of the photographs was an infringement of Naomi Campbell’s right to privacy and had to be viewed in conjunction with the captions and the article as a whole. Although it was said expressly that the mere fact of covert photography is not sufficient to make the information contained in the photograph confidential, the accompanying text transformed the photographs into more than a mere street scene, and added to the intrusion.
Conclusions from Campbell
The Lords acknowledged that the supermodel’s claims did not fit easily into the traditional analysis of a claim for breach of confidence. It was for this reason they acknowledged an expansion to the cause of action, dubbed “misuse of private information” or the “unjustified publication of private information.” The essence of such a claim is the publication, without consent, of information in respect of which a person had a “reasonable expectation of privacy.”
Essentially the Lords performed a balancing exercise between Article 8 and Article 10. Although its effect was to create a more extensive right of privacy, the Lords were at pains to point out that the Campbell case did not raise any new issues of principle. With hindsight, though, it is clear that the HRA was having a substantial effect. The law was transforming in favour of celebrities and public figures who wanted to have a “private life” away from their day jobs.
If there was any doubt it was soon to be removed by the European Court of Human Rights in Strasbourg when, a month after the House of Lords’ decision in Campbell, the ECHR gave judgment in the case of Von Hannover v Germany(1). This is the decision we will be examining next week.
1.  40 EHRR 1
© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at May 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.