PRIVACY
Arists

Model Naomi Campbell has won her privacy battle against the UK’s Daily Mirror after the newspaper reported her attendance at a Narcotics Anonymous meeting in 2001. The House of Lords re-instated the High Court’s award of £3,500. The Newspaper is left with legal costs estimated at £1 million. Editor of the Daily Mirror, Piers Morgan, was reported as saying “this is a good day for lying, drug abusing prima donnas”.
By a majority of three to two, the House of Lords has reversed the decision of the Court of Appeal and reinstated the judgement of Mr Justice Morland in the High Court (see our early warning of March 2002) that the Mirror had breached the provisions of the Data Protection Act 1998 and her right to confidentiality in her treatment for narcotics addiction. The Courts held that the details of Campbell’s treatment (therapy) were medical records and therefore by their very nature confidential and private.

Reference: See the article by Martin Soames, The Guardian (Media p10), May 10th 2004

COMMENT : Naomi Campbell’s argument was that she had and should be allowed to have therapy for drug addiction in private. Campbell’s original claim was threefold (1) a claim for a breach of her right to privacy under article 8 of theHuman Rights Act 1998 (2) breach of confidentiality and (3) breach of the provisions of the Data Protection Act 1998: It was the final two parts that proved successful and in particular that ruling that her therapy was medical treatment and was therefore confidential and anyone in possession of this information should not pass it on to a third party (or publish the information). The Mirror’s argument is equally simple – it has the right to inform its readers the truth about a public figure and that the model had lost any right to privacy by lying about her addiction. The model did accept that the paper had a right to tell its readers she was receiving treatment for addiction – the Mirror argued that this should be extended to a right to give details of her attending Narcotics Anonymous. But the Law Lord extended the fairly dated concept of confidentiality into the new era of ‘privacy’ – but celebrities must beware that the protection is only limited – courts object to photographs being taken secretly and at a great distance but balance this against the press right to a freedom of expression and to report on matters of public interest.

It has not gone unnoticed that five senior judges (three Lord Justices and two Law Lords) found for the Mirror and only four (three law lords and Mr Justice Morland) for Campbell. The two most experienced law lords sided with the Mirror. This case has been all about balancing the model’s right to privacy against the paper’s right to publish where in the public interest. The final stage in this story could be a claim to the European Court of Human Rights by the Mirror under the Human Rights Act 1998 – in that their right to a freedom of expression (article 10) has been breached.

 

ARTICLE: By Jonathan Coad, Solicitor
The action arose from a report and photograph in the Daily Mirror in February 2001 that Naomi Campbell was attending meetings with Narcotics Anonymous in Chelsea to beat her addiction to drugs, an addiction which she had previously denied. The core issue before the court was whether the publication at issue “was legitimate in that the public interest in favour of publication outweighed any public interest in the protection” of Naomi Campbell’s rights of confidentiality.

The dissenting judgements came from Lord Nicholls and Lord Hoffman. Lord Nicholls, despite finding against Ms Campbell commented: “The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it too lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well being and development of an individual.”

After observing that there was no “all embracing” cause of action for “invasion of privacy”, Lord Nicholls observed that “the time has come to recognise that the values enshrined in Articles 8 and 10 [of the European Convention on Human Rights] are now part of the cause of action for breach of confidence.” He went on to observe that “the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.” Lord Nicholls however concluded that Naomi Campbell’s privacy rights were not infringed, and dismissed the appeal.

Lord Hoffman identified the point dividing the House as a narrow one, namely whether in exposing falsehoods on the part of Ms Campbell about her use of drugs “the newspaper went too far in publishing associated facts about her private life.”

Lord Hoffman also observed that there is no general cause of action for privacy in this jurisdiction, but stressed that “the right to privacy is in a general sense one of the values, and sometimes the most important value, which underlies a number of more specific causes of action, both at common law and under various statutes”. Lord Hoffman endorsed the view expressed by the Court of Appeal when it said that when publication of confidential information is justified in the public interest, “the journalist must be given reasonable latitude as to the manner in which the information is conveyed to the public or his Article 10 right to freedom of expression will be unnecessarily inhibited.”

Like Lord Nicholls, Lord Hoffman also dismissed the appeal on the facts, while upholding the general principle that the privacy of the individual should be protected under the UK law. Lord Hope made a strong point of the need for privacy in any battle against an addiction to drugs or alcohol. He also rejected the dismissal by the Court of Appeal of the analogy between information that Naomi Campbell was receiving therapy from Narcotics Anonymous and information about details of a medical condition or its treatment. He said that he thought that the trial judge was right to regard the details of Naomi Campbell’s attendance at Narcotics Anonymous as private information which gave rise to a duty of confidence.

Lord Hope also criticised the Court of Appeal’s approach of judging whether the disclosure of the information “would have offended the reasonable man of ordinary susceptibilities” on the mind of the reader, rather than the mind of the person who is affected by the publicity. He then looked at striking the balance between the rights according to Article 8 and Article 10 of the European Convention on Human Rights, and concluded that this infringement of Naomi Campbell’s right to privacy could not be justified in weighing those two competing rights, and allowed the appeal.

Baroness Hale conducted a balancing exercise between the Article 8 right of Naomi Campbell and the Article 10 right of the Daily Mirror. Baroness Hale drew a distinction between various types of speech, placing political speech as the most important. Here, however, the newspaper had disclosed “intimate details of a fashion model’s private life”, which they clearly regarded as a rather less public interest. She concluded by citing the Press Complaints Commission Code of Practice as it referred to privacy, and concluded that on applying these principles she should allow the appeal.

Lord Carswell also rejected the distinction made in the Court of Appeal between information concerning therapy at Narcotics Anonymous and details of the treatment of a medical condition. He considered that the decision was a delicately balanced one, but concluded that the information published concerning Naomi Campbell’s therapy at Narcotics Anonymous constituted “a considerable intrusion into her private affairs, which was capable of causing substantial distress, and on her evidence did cause it to her.” He therefore considered that the balance came down in favour of Naomi Campbell, and also allowed the appeal. The balancing exercise between the rights of privacy and free speech conducted by the House of Lords makes the job of lawyers advising in this field extremely difficult. Two fundamental rights collide when such issues arise, and it is very often not so much a legal judgement but one of instinct and principle which will determine whether the court will intervene on an issue of privacy or not. However, as all the judges agreed, some protection for privacy is essential in the UK law, and that at least has been established by this majority decision of the House of Lords.

Jonathan Coad , Solicitor.

This update is © The Simkins Partnership.
This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. 
The Simkins website is at http://www.simkins.com

See Law Updates May 2004: The New Zealand Court of Appeal Formulates a Law of Privacy: Michael Hosking v Pacific Magazines

ADDENDUM
In France a court order banning the publication of a book containing details about how former French president Francois Mitterand lied about his prostrate cancer has been lifted. The European Court of Human Rights said the ban on the work by Dr Claude Gubler, Mitterand’s private doctor, was an infringement to his right to free speech. After Mitterand’s death in 1996 Gubler published the book called Le Grand Secret and admitted he had faked Mitterand’s medical reports. The ECHR said that as Mitterand was some months dead by the time the injunctive order was made and since the faked report were common knowledge (40,000 copies of the book had been sold) the banning order was disproportionate. Dr Gubler was found guilty of breaking the Hippocratic Oath by the French Order of Doctors and banned from practice, fined and given a suspended prison sentence. Mr Gubler’s publishers were awarded their legal costs.
Source: The Times 19 May 2004
ADDENDUM 2
On Saturday 29 May 2004 former Olympic champion and now chair of London’s Olympic Bid Sebastian Coe unsuccesfully attempted to obtain a temporary injunction against the Sunday Mirror and the Mail on Sunday to prevent further revelations of his relationship with former lover Vanesa Lander. Mr Justice Fulford rejected the application for the injunction saying that he was not satisfied that Lord Coe would obtain a full injunction after both side’s arguments were aired; The newspapers’ right to publish outweighed Lord Coe’s right to keep personal information private. Lord Coe, who is married with three children, alledgedly had a long-term extra-marital affair with Ms Lander and had paid for her to have an abortion whilst his wife was expecting their third child. Mr Justice Fulwood held that as a public figure recently in the news Lord Coe could not expect to have the right to keep that information private.
see: www.mediaguardian.co.uk