A model case?

Campbell v MGN Limited [2004] UKHL 22 on appeal from: [2002] ECWA Civ 1373

Naomi Campbell has won her 'privacy' claim in the House of Lords.

A majority ruling of three to two of the law lords found that The Daily Mirror newspaper's 2001 expos of her as a drug abuser should not have included details of her therapy, or a photograph of her leaving a session at Narcotics Anonymous (NA).

So finally judgment is with us, but what does it actually mean? The views are varied, with jubilation from the celebrity blue corner and alarm from the red-tops' corner.

The now former Mirror editor Piers Morgan lamented that it has created a 'back-door privacy law', although Baroness Hale of Richmond stated in her judgment, 'our law cannot, even if it wanted to, develop a general tort of invasion of privacy'.

Keith Schilling, Ms Campbell's lawyer, considers it to be the first successful privacy case in the Lords, while the publicist Max Clifford said in an interview for The Daily Telegraph, that it wouldn't change a thing.

The claim concerned the publication of an article in The Mirror that exposed Naomi Campbell as a drug addict.

It was a sympathetic piece, illustrated with details of the therapy she was undergoing to overcome her addiction and it was accompanied by a photograph of her leaving a NA session.

There is, as Lord Nicholls set out in his judgment, 'no over-arching, all-embracing cause of action for invasion of privacy' in the UK.

But there are tools available to a claimant to protect private information.

Ms Campbell brought proceedings for breach of confidence and compensation under the relatively new Data Protection Act 1998 (DPA).

While commentators had suggested that the DPA could emerge as a new weapon for claimants, it was agreed between the parties that the claim in data protection would stand or fall with the confidence claim, and it did not receive any judicial scrutiny in the House of Lords.

But if this claim was won on a long established and well-used tool for the protection of confidential and private information, why all the fuss? The terminology is telling, with the words private and privacy peppered throughout the judgment.

According to Lord Nicholls of Birkenhead, the tort is 'better encapsulated now as misuse of private information'.

This action was the first media case to be heard by the highest court in the land, where the facts occurred after the implementation of the Human Rights Act 1998.

That legislation incorporated into UK law the claimant's right to privacy and the defendant's right to freedom of expression, enshrined in articles 8 and 10 respectively of the European Convention on Human Rights.

Said Lord Nicholls: 'The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence'.

To establish a claim in breach of confidence, the claimant needs to show that confidential information, which the defendant knew or ought to have known was confidential, had been disseminated without her consent and to her detriment.

It was accepted by Ms Campbell's camp that she could not complain about her exposure as a drug addict, as while this would normally be protected information, she had forfeited her right to protection by having publicly lied about the matter.

The newspaper was entitled to correct this false impression to the public.

But she complained about the flesh put on the bones of the story, and the photograph, arguing that its publication was an unnecessary interference with her private life.

The newspaper countered that this information was merely peripheral to the main story and gave it credibility.

At first instance, Mr Justice Morland ruled in Ms Campbell's favour.

The details of Ms Campbell's treatment - which could in his judgment only have come from a fellow attendee or one of Ms Campbell's entourage - bore the badge of confidentiality.

Publication would be to her detriment, adversely impacting on her attendance at NA meetings.

On appeal, the newspaper argued that the colour given to the story was a legitimate part of the journalistic package, providing an accurate and credible account of the fact that Ms Campbell was a drug user.

The Court of Appeal unanimously agreed.

Adopting the categories into which Ms Campbell's camp had divided the information, it found, as Ms Campbell accepted, the newspaper was entitled to publish the fact of the drug use given her previous public lies.

It was entitled to publish the fact that she was seeking therapy, putting the drug use in context and in a sympathetic light.

Ms Campbell did not object to this.

Furthermore, it could publish the fact that the therapy was at NA, some of the detail of that therapy and the photograph of her leaving the meeting, as this information did not affect Ms Campbell any more than the justifiable exposure of the addiction in the first place.

It fell to the Law Lords to decide whether the flesh on the bones of the story was acceptable in the furtherance of the press's right to free expression under article 10, or whether it was an unnecessary interference with the claimant's right to respect for her private life under article 8.

Alternatively, if it was both, which outweighed the other on the specific facts.

While the ultimate decision of the Lords differed, the result was achieved by an assessment of the extent of the margin of appreciation to be afforded to the press in illustrating its story.

Matters of health and medical treatment are generally considered to be private and confidential.

And the Lords were content to consider treatment for drug addiction, albeit not from a doctor, in the same light.

While Ms Campbell had forfeited her right by her public lie to keep the fact of the addiction private, the court had to ask itself whether she retained some vestige of privacy with regard to the detail of her therapy.

And if so, whether that privacy right was outweighed by the newspaper's right to freedom of expression in illustrating its story.

The judges firstly asked themselves whether Ms Campbell's article 8 rights were engaged, that is, whether the newspaper knew or ought to have known that she had a reasonable expectation of privacy with regard to the information it intended to publish.

Sometimes the position would be clear.

But if it was not - and only then - the court could apply a test, first expounded by the Chief Justice in the Australian case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13, referred to as the 'highly offensive test'.

The court asks whether the information published would be 'highly offensive to a reasonable person of ordinary sensibilities', where that person is in the same position as the claimant.

If article 8 was engaged, on an initial assessment or after applying this test, then as Baroness Hale explained, 'the court must balance the claimant's interest in keeping [the information] private against the countervailing interest of the recipient in publishing it'.

It is in undertaking this balancing exercise, on this particular set of facts, where the Lords differed.

In his dissenting judgment, Lord Justice Nicholls doubted even if the information retained 'its character of private information sufficiently to engage the protection afforded by article 8.

But going on to undertake the balancing exercise, he found that any intrusion into Ms Campbell's private life would be at most to 'a comparatively minor degree', while non-publication 'would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction'.

Lord Hoffman's judgment considered that Ms Campbell did retain a 'residual area of privacy', despite her feeding on the press for publicity, but that her relationship with the press diminished her ability to complain as could an ordinary citizen.

'She cannot insist upon too great a nicety of judgment in the circumstantial detail with which [a legitimate story] is presented.' Lord Nicholls found that the photographs added no further private information, and Lord Hoffman said that, as 'an essential part of the story' confirming it to be true, they were 'within the margin of editorial judgement' allowed.

In contrast, the majority found that the intrusion outweighed any possible shackle on the newspaper.

Lord Carswell considered that there was 'a considerable intrusion' into Ms Campbell's private affairs, creating 'a risk of causing a significant setback to her recovery'.

Baroness Hale, describing the contest as between 'a prima donna celebrity' and 'a celebrity-exploiting tabloid newspaper', found that 'blundering in when matters are acknowledged to be at a fragile stage may do great harm'.

Given the tight result, Lord Hope's view on the photographs must have been a matter of debate in the Mirror camp: 'Had it not been for the publication of the photographs...

I would have been inclined to regard the balance between these rights [articles 8 and 10] as about even.' However, he concluded that greater weight should be given to the damage that would be done to the claimant by publication of the information.

Accordingly, the right of freedom of expression had on the facts of this case to play second fiddle to the claimant's right to keep the information private.

But while it is tempting to generalise from this judgment, one should heed the judges' warnings that this was a specific and unusual set of facts.

A beautiful woman, Naomi Campbell was a less than attractive privacy claimant.

Once the dust has settled, we will have to see whether she emerges as an unlikely champion of human rights, giving rise to new rights for celebrities, or whether the judgment will have little impact on the way newspapers operate.

With nine judges coming to differing decisions in the past four years - five for the loser and four for the eventual winner - the views on its impact are probably as many and varied as the outfits modelled by Ms Campbell in her catwalk career.

Which proves to be the most hard wearing, remains to be seen.

What the experts say

Keith Schilling, partner at London-based law firm Schillings, who acted for Naomi Campbell: 'The case, the first successful privacy case in the Lords, is an historic case at a number of levels, and it has significantly developed the law in the area of personal privacy.

'Where disclosures are considered to be justified under article 10 - for example, where there is a public interest in disclosing a sexual relationship of a politician - that disclosure can only be made to the extent that it is necessary, which may not justify the publication of salacious details or intimate photographs.

This has potentially put an end to hostile kiss and tell stories.

'Any [appeal] to Europe would not be against Naomi Campbell, but against the UK government.

Not only would any complaint not affect the outcome of this case, but it would fail at the "admissibility" stage.

Marcus Partington, head of legal at MGN Limited, the defendant in this action, publishers of The Mirror: 'Claimants' lawyers (which effectively means celebrity lawyers) will think the case strengthens their client's position, but as the Lords made clear this was an unusual case on its facts.

The impact will be much less than people think.

'Sadly, the Lords who found against us have made the mistake of becoming editors as opposed to judges.

Not only is this impermissible, it ignores the European jurisprudence about the "margin of appreciation" which should be given to journalists.

'We are giving consideration to taking the case to Europe, and if we do that I suspect the impact of the decision could well be nil.'

Nigel Tait, partner at London-based libel and privacy law firm, Peter Carter-Ruck & Partners: 'This is a really massive decision.

Although the House of Lords agreed on what the law was, the way that they have applied it has now created the privacy law that some of us have been looking for.

'The courts have traditionally found for the victims where photographs are involved, and this case further acknowledges the right to privacy in a public place.

The press is now going to have to be extremely careful when using street shots.'

Mark Stephens, partner at Finers Stephens Innocent, acts for US publishers and broadcasters: 'This case has not moved the privacy-ball any further up field and it does not create new law.

The Mirror would be ill-advised to take the case to Europe where the judges have grown up heavily influenced by their restrictive European privacy laws.

If this case is taken to Europe, it can only get worse.'

Eddie Young, legal adviser at Associated Newspapers, publishers of the Daily Mail, the Mail on Sunday and the Evening Standard:

'This is another depressing example of judges paying lip service to the notion of press freedom and then attempting to impose further restrictions on it.

The worst aspect of it is that it simply creates more uncertainty for potential litigants.

'How are lawyers supposed to advise when one judge considered that disclosing detail would be a 'minor' intrusion into Ms Campbell's life while another found that it constituted "a considerable intrusion"?'