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naomi campbell ruling: privacy law through the 'back door'?

May 2004

Unlike the United States , there has never been a stand-alone cause of action for invasion of privacy [i] in the UK . Claimants have sought to protect their privacy using more indirect and limited causes of action such as breach of confidence - traditionally this has been dependent upon the establishment of a special 'relationship of confidence'. Does the recent decision of the House of Lords in Campbell v MGN Ltd [ii] change this? In this article, we look at the decision and what it means for UK privacy laws.

The facts of the case are now well known: in February 2001, The Mirror newspaper reported that the supermodel Naomi Campbell suffered from a drug addiction and was receiving treatment by attending Narcotics Anonymous (NA). Ms Campbell had previously denied she was a drug addict. The story was accompanied by photos of Ms Campbell outside an NA meeting, and certain details about her treatment, some of which were inaccurate. Ms Campbell brought proceedings against the newspaper.

At first instance, Morland J found for Ms Campbell, holding that the publication of the news story had been a breach of Ms Campbell's rights under the laws of confidence and under the Data Protection Act 1998. The Mirror appealed and the Court of Appeal reversed the first instance decision. The House of Lords, by a majority of three to two, has now overturned the Court of Appeal decision and reinstated the original order of £3,500 damages to Ms Campbell.

Breach of confidence and the misuse of private information

The decision is significant: although the Law Lords agreed that there is still no over-arching cause of action in the UK for invasion of privacy, the decision appears to have expanded the existing action for breach of confidence by protecting the unjustified use of private information without the need to establish a confidential relationship.

This expansion has largely been achieved by applying Articles 8 (Right to respect for private and family life) and 10 (Right to freedom of expression) of the European Convention on Human Rights (which was incorporated into English law by the Human Rights Act 1998).

In the context of the publication of private information, the decision has essentially introduced a new legal test. The first part of the test is to establish whether the information in question is sufficiently private to attract protection under Article 8. This is determined by looking at whether there was a 'reasonable expectation' of privacy. Baroness Hale (who found in Ms Campbell's favour) described this as where "the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential".

Where information is protected under Article 8, the Law Lords agreed that the second part of the test is to balance the right to privacy under Article 8 with the press' right to freedom of expression under Article 10. They also agreed that Articles 8 and 10 of the Convention are of equal importance and that neither has priority over the other.

Significantly, Lord Nicholls (who found against Ms Campbell, although none of the majority disagreed with him) took the view that Articles 8 and 10 are not restricted to actions against the state: the rights also apply between private individuals, and between individuals and private organisations such as newspapers; previously, it was unclear whether the Human Rights Act could apply between private organisations and individuals.

While all the Law Lords agreed on the general principles of the new legal test, they differed on the application of the test to the facts of this particular case, and specifically on whether the publication of the categories of information published by The Mirror, was justifiable in the circumstances.

The information that was published fell into 5 categories:

The fact Ms Campbell suffered from a drug addiction;
The fact she was receiving treatment for the addiction;
The fact that the treatment was at NA;
Details of the NA treatment; and
Photographs of MS Campbell emerging from an NA meeting.

All the Law Lords agreed that publication of the first two categories was justifiable, on the grounds that this information was necessary to "put the record straight" on Ms Campbell's denial that she was a drug addict. Disagreement centred on the last three categories.

The majority [iii] agreed with the trial judge that the law prevented the disclosure of categories (3) to (5) , as Ms Campbell's right to privacy under Article 8 in relation to these categories outweighed The Mirror's right to freedom of expression under Article 10. This was largely on the grounds that the information related to a medical condition and the treatment of it. Two of their Lordships described the information in categories (3) to (5) as the kind of information that is recorded in the medical notes of a patient. They also felt publication of that information could have implications on the progress of the treatment being undertaken.

In assessing the relative importance of the right to freedom of expression under Article 10, the majority decided that, in this case, the considerations under Article 10 could not justify the publication of the material in categories (3) to (5) . The Law Lords drew a distinction between the greater need to protect free political speech, the lesser need to protect artistic speech, and the still lesser need to protect the free speech of commercial publications detailing the lives of celebrities. As the present case fell into the last category, it carried less weight against Ms Campbell's right to privacy.

Lord Hope thought that the publication of the photographs was particularly relevant: in his view, had it not been for the photographs, the balance between the competing rights of privacy and freedom of expression would have been "about even" [iv]. The photographs, despite being taken in a public place, were still considered "private" as Ms Campbell was engaged in a private activity.

What does the case mean?

The decision effectively means that there is now a right to prevent the misuse or unjustified publication of private information without the need to establish a confidential relationship. The decision also appears to confirm that the Human Rights Act 1998 and, in particular, the right to privacy under Article 8 applies not only to state bodies but also to organisations in the private sector. Finally, the case appears to introduce a higher standard that must be satisfied by newspapers and other commercial organisations to justify the publication of details of the lives of celebrities than that which applies, for example, to free political speech.

What about data protection?

The High Court and the Court of Appeal reached their decisions by reference to the Data Protection Act 1998. Their Lordships did not consider the Act in their decisions at all [v]. The trial judge had found that the information published by The Mirror was sensitive personal data as defined under the Act and that none of the legitimising conditions under Schedules 2 or 3 applied. Reversing the decision of the trial judge, the Court of Appeal found that The Mirror had a defence under section 32 (which provides an exception for the media where they reasonably believe publication would be in the public interest) and that the defence under this section was available both before and after the publication of the story [vi]. The Court of Appeal also found that, as Ms Campbell had lied about her addiction, publication was in the public interest. Given the lack of commentary by the House of Lords on this point, it appears the reasoning of the Court of Appeal still applies.

Conclusion

The case has stoked mixed feelings in the legal and journalistic worlds. Some believe it spells the end for press freedom with editors having to think twice before publishing private materials regarding celebrities. Others think that, as the case was decided on its own specific facts, the ruling is unlikely to have a significant impact on the press's freedom to publish celebrity stories.

The decision does mark recognition by the courts that there is some form of right (albeit limited) to prevent the misuse of private information and this has clearly been facilitated by the implementation of the Human Rights Act 1998. What remains unclear is how this right fits in with the ever developing area of data protection law.

Given the 3-2 majority and the very specific facts, the case may be difficult to apply. Whether it becomes the foundation of an all-embracing right of privacy remains to be seen.

Useful URLs

http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/campbe-1.htm
House of Lords Judgment
http://www.hmso.gov.uk/acts/acts1998/19980042.htm
Human Rights Act 1998
http://www.hmso.gov.uk/acts/acts1998/19980029.htm
Data Protection Act 1998

Nooreen Ajmal and Paul O'Hare

[1] See Wainright v Home Office [2003] 3WLR 1137

[2] [2004] UKHL 22

[3] Lord Hope, Lord Carswell and Baroness Hale

[4] see paragraph 121 of the judgment

[5] Baroness Hale felt it brought nothing extra beyond the claim for breach of confidence.

[6] It had previously been held that the exemption was only available before the article in question is published.