Private lives and public interest

With 'no comment' taken as an admission by the media, how can celebrities keep their medical treatment private? asks Keith Schilling

Assuming, as I think one should, that the voluntary self-help group Narcotics Anonymous is not a cover for an international terrorist network, in what circumstances ought it to be permissible to use informants and subterfuge to obtain for publication details of attendances and treatment there?

Specifically, is it necessary in a democratic society - in the absence of terrorism, major crime or national security issues - to stake out a Narcotics Anonymous meeting, to take surreptitious long-lens photographs of members leaving and to send someone into a meeting posing as a fellow sufferer to gain intelligence?

These are the facts of the case of Naomi Campbell v Mirror Group Newspapers in which the Court of Appeal upheld the newspaper's appeal earlier this month (see [2002] Gazette, 17 October, 3, and [2002] Gazette, 31 October, 38).

Such cases raise the fundamental issue of the value we place on privacy.

Is it, as some would say, a cloak behind which a public figure hypocritically hides indiscretions? Or is it, as the philosopher AC Grayling has said, 'a necessity, no less than food or drink'? After all, we are dealing with people who by their attendance at such a meeting recognise that they have problems and are seeking to address them.

The Court of Appeal considered it to be in the public interest to inform the public that Naomi Campbell had misled them in previous interviews about her condition.

It is worth emphasising that Ms Campbell was not seeking to suppress publication of the fact she had suffered from a drug problem or that she had previously denied it, but rather to prevent publication of details of her treatment.

Furthermore, as Ms Campbell makes clear, recognising and owning up to the problem is part of the reason for attending Narcotics Anonymous.

Equally, the Court of Appeal might have held that it was in the public interest that the claimant should be able to attend Narcotics Anonymous meetings without fear of unwanted publicity.

The use of the term 'public interest' is not overly helpful in such cases in explaining a decision.

These cases are a balancing exercise of two competing human rights, those of privacy and freedom of expression.

Neither is a trump card.

If Narcotics Anonymous or Alcoholics Anonymous meetings can be staked out, what will sufferers do? Seek conventional medical treatment? Will it involve prolonged periods in hospital and if so will the NHS pay? And what is the logical explanation for protecting the privacy of hospital patients but not the privacy of people attending Narcotics Anonymous or Alcoholics Anonymous with the same condition? The Court of Appeal appears to regard conventional medical treatment as worthy of privacy protection, but not therapy or counselling.

This is not the most troubling aspect of the Court of Appeal judgment.

If someone misleads the public, that can be a ground for stripping them of privacy protection to correct their public image.

But the decision is taken by the newspaper editor, in many cases using old press reports which may or may not be correct.

It also means that whenever there is an incongruity between a public image and a private fact, resort can be had to private information, even arguably medical information, to correct that image.

In the real world 'no comment' is taken by the media as an admission.

But if you decide it is morally right to deny some private fact as a means of keeping it private then since you have falsely denied it, the ratio in Campbell applies.

The media will not only be entitled to publish it, but to have regard to private and confidential material to rebut your earlier denial.

An appeal to the House of Lords seems to me essential to provide further guidance.

Keith Schilling, senior partner at London media law specialist firm Schillings, acted for Naomi Campbell