House of Lords
|Session 2003 - 04
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Campbell (Appellant) v. MGN Limited (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
MGN Limited (Respondents)
THURSDAY 6 MAY 2004
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Campbell (Appellant) v. MGN Limited (Respondents)
 UKHL 22
THE LORD NICHOLLS OF BIRKENHEAD
1. Naomi Campbell is a celebrated fashion model. Hers is a household name, nationally and internationally. Her face is instantly recognisable. Whatever she does and wherever she goes is news.
2. On 1 February 2001 the 'Mirror' newspaper carried as its first story on its front page a prominent article headed 'Naomi: I am a drug addict'. The article was supported on one side by a picture of Miss Campbell as a glamorous model, on the other side by a slightly indistinct picture of a smiling, relaxed Miss Campbell, dressed in baseball cap and jeans, over the caption 'Therapy: Naomi outside meeting'. The article read:
3. The story continued inside, with a longer article spread across two pages. The inside article was headed 'Naomi's finally trying to beat the demons that have been haunting her'. The opening paragraphs read:
In our picture, the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug.
This is one of the world's most beautiful women facing up to her drink and drugs addiction - and clearly winning.
The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle.
Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling
To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.'
4. The article made mention of Miss Campbell's efforts to rehabilitate herself, and that one of her friends said she was still fragile but 'getting healthy'. The article gave a general description of Narcotics Anonymous therapy, and referred to some of Miss Campbell's recent publicised activities. These included an occasion when Miss Campbell was rushed to hospital and had her stomach pumped. She claimed it was an allergic reaction to antibiotics and that she had never had a drug problem: but 'those closest to her knew the truth'.
5. In the middle of the double page spread, between several innocuous pictures of Miss Campbell, was a dominating picture over the caption 'Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week'. The picture showed her in the street on the doorstep of a building as the central figure in a small group. She was being embraced by two people whose faces had been pixelated. Standing on the pavement was a board advertising a named café. The article did not name the venue of the meeting, but anyone who knew the district well would be able to identify the place shown in the photograph.
6. The general tone of the articles was sympathetic and supportive with, perhaps, the barest undertone of smugness that Miss Campbell had been caught out by the 'Mirror'. The source of the newspaper's information was either an associate of Miss Campbell or a fellow addict attending meetings of Narcotics Anonymous. The photographs of her attending a meeting were taken by a free lance photographer specifically employed by the newspaper to do the job. He took the photographs covertly, while concealed some distance away inside a parked car.
7. In certain respects the articles were inaccurate. Miss Campbell had been attending Narcotics Anonymous meetings, in this country and abroad, for two years, not three months. The frequency of her attendance at meetings was greatly exaggerated. She did not regularly attend meetings twice a day. The street photographs showed her leaving a meeting, not arriving, contrary to the caption in the newspaper article.
The proceedings and the further articles
8. On the same day as the articles were published Miss Campbell commenced proceedings against MGN Ltd, the publisher of the 'Mirror'. The newspaper's response was to publish further articles, this time highly critical of Miss Campbell. On 5 February 2001 the newspaper published an article headed, in large letters, 'Pathetic'. Below was a photograph of Miss Campbell over the caption 'Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs'. This photograph was similar to the street scene picture published on 1 February. The text of the article was headed 'After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy.' The article mentioned that 'the Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous'. Elsewhere in the same edition an editorial article, with the heading 'No hiding Naomi', concluded with the words: 'If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it.'
9. Two days later, on 7 February, the 'Mirror' returned to the attack with an offensive and disparaging article. Under the heading 'Fame on you, Ms Campbell', an article referred to her plans 'to launch a campaign for better rights for celebrities or "artists" as she calls them'. The article included the sentence: 'As a campaigner, Naomi's about as effective as a chocolate soldier.'
10. In the proceedings Miss Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. The article of 7 February formed the main basis of a claim for aggravated damages. Morland J  EWHC 499 (QB) upheld Miss Campbell's claim. He made her a modest award of £2,500 plus £1,000 aggravated damages in respect of both claims. The newspaper appealed. The Court of Appeal, comprising Lord Phillips of Worth Matravers MR, Chadwick and Keene LJJ, allowed the appeal and discharged the judge's order:  EWCA Civ 1373,  QB 633. Miss Campbell has now appealed to your Lordships' House.
Breach of confidence: misuse of private information
11. In this country, unlike the United States of America, there is no over-arching, all-embracing cause of action for 'invasion of privacy': see Wainwright v Home Office  3 WLR 1137. But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions. The recent decision of the Court of Appeal of New Zealand in Hosking v Runting (25 March 2004) is an example of this. In this country development of the law has been spurred by enactment of the Human Rights Act 1998.
12. The present case concerns one aspect of invasion of privacy: wrongful disclosure of private information. The case involves the familiar competition between freedom of expression and respect for an individual's privacy. Both are vitally important rights. Neither has precedence over the other. 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. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state: see La Forest J in R v Dymont  2 SCR 417, 426.
13. The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence. A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. To attract protection the information had to be of a confidential nature. But the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances 'importing an obligation of confidence' even though no contract of non-disclosure existed: see the classic exposition by Megarry J in Coco v A N Clark (Engineers) Ltd  RPC 41, 47-48. The confidence referred to in the phrase 'breach of confidence' was the confidence arising out of a confidential relationship.
14. This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognised clearly in the judgment of Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109, 281. Now the law imposes a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.
15. In the case of individuals this tort, however labelled, affords respect for one aspect of an individual's privacy. That is the value underlying this cause of action. An individual's privacy can be invaded in ways not involving publication of information. Strip-searches are an example. The extent to which the common law as developed thus far in this country protects other forms of invasion of privacy is not a matter arising in the present case. It does not arise because, although pleaded more widely, Miss Campbell's common law claim was throughout presented in court exclusively on the basis of breach of confidence, that is, the wrongful publication by the 'Mirror' of private information.
16. The European Convention on Human Rights, and the Strasbourg jurisprudence, have undoubtedly had a significant influence in this area of the common law for some years. The provisions of article 8, concerning respect for private and family life, and article 10, concerning freedom of expression, and the interaction of these two articles, have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present. Where both are present the courts are increasingly explicit in evaluating the competing considerations involved. When identifying and evaluating these factors the courts, including your Lordships' House, have tested the common law against the values encapsulated in these two articles. The development of the common law has been in harmony with these articles of the Convention: see, for instance, Reynolds v Times Newspapers Ltd  2 AC 127, 203-204.
17. 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. As Lord Woolf CJ has said, the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action: A v B plc  QB 195, 202, para 4. Further, it should now be recognised that for this purpose these values are of general application. The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority.
18. In reaching this conclusion it is not necessary to pursue the controversial question whether the European Convention itself has this wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of practice and procedure. It is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities. This approach has been adopted by the courts in several recent decisions, reported and unreported, where individuals have complained of press intrusion. A convenient summary of these cases is to be found in Gavin Phillipson's valuable article 'Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act' (2003) 66 MLR 726, 726-728.
19. In applying this approach, and giving effect to the values protected by article 8, courts will often be aided by adopting the structure of article 8 in the same way as they now habitually apply the Strasbourg court's approach to article 10 when resolving questions concerning freedom of expression. Articles 8 and 10 call for a more explicit analysis of competing considerations than the three traditional requirements of the cause of action for breach of confidence identified in Coco v A N Clark (Engineers) Ltd  RPC 41.
20. I should take this a little further on one point. Article 8(1) recognises the need to respect private and family life. Article 8(2) recognises there are occasions when intrusion into private and family life may be justified. One of these is where the intrusion is necessary for the protection of the rights and freedoms of others. Article 10(1) recognises the importance of freedom of expression. But article 10(2), like article 8(2), recognises there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life
21. Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.
22. Different forms of words, usually to much the same effect, have been suggested from time to time. The second Restatement of Torts in the United States (1977), article 652D, p 394, uses the formulation of disclosure of matter which 'would be highly offensive to a reasonable person'. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13, para 42, Gleeson CJ used words, widely quoted, having a similar meaning. This particular formulation should be used with care, for two reasons. First, the 'highly offensive' phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the 'highly offensive' formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.
The present case
23. I turn to the present case and consider first whether the information whose disclosure is in dispute was private. Mr Caldecott QC placed the information published by the newspaper into five categories: (1) the fact of Miss Campbell's drug addiction; (2) the fact that she was receiving treatment; (3) the fact that she was receiving treatment at Narcotics Anonymous; (4) the details of the treatment - how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment, and the nature of her entrance on the specific occasion; and (5) the visual portrayal of her leaving a specific meeting with other addicts.
24. It was common ground between the parties that in the ordinary course the information in all five categories would attract the protection of article 8. But Mr Caldecott recognised that, as he put it, Miss Campbell's 'public lies' precluded her from claiming protection for categories (1) and (2). When talking to the media Miss Campbell went out of her way to say that, unlike many fashion models, she did not take drugs. By repeatedly making these assertions in public Miss Campbell could no longer have a reasonable expectation that this aspect of her life should be private. Public disclosure that, contrary to her assertions, she did in fact take drugs and had a serious drug problem for which she was being treated was not disclosure of private information. As the Court of Appeal noted, where a public figure chooses to present a false image and make untrue pronouncements about his or her life, the press will normally be entitled to put the record straight:  QB 633, 658. Thus the area of dispute at the trial concerned the other three categories of information.
25. Of these three categories I shall consider first the information in categories (3) and (4), concerning Miss Campbell's attendance at Narcotics Anonymous meetings. In this regard it is important to note this is a highly unusual case. On any view of the matter, this information related closely to the fact, which admittedly could be published, that Miss Campbell was receiving treatment for drug addiction. Thus when considering whether Miss Campbell had a reasonable expectation of privacy in respect of information relating to her attendance at Narcotics Anonymous meetings the relevant question can be framed along the following lines: Miss Campbell having put her addiction and treatment into the public domain, did the further information relating to her attendance at Narcotics Anonymous meetings retain its character of private information sufficiently to engage the protection afforded by article 8?
26. I doubt whether it did. Treatment by attendance at Narcotics Anonymous meetings is a form of therapy for drug addiction which is well known, widely used and much respected. Disclosure that Miss Campbell had opted for this form of treatment was not a disclosure of any more significance than saying that a person who has fractured a limb has his limb in plaster or that a person suffering from cancer is undergoing a course of chemotherapy. Given the extent of the information, otherwise of a highly private character, which admittedly could properly be disclosed, the additional information was of such an unremarkable and consequential nature that to divide the one from the other would be to apply altogether too fine a toothcomb. Human rights are concerned with substance, not with such fine distinctions.
27. For the same reason I doubt whether the brief details of how long Miss Campbell had been undergoing treatment, and how often she attended meetings, stand differently. The brief reference to the way she was treated at the meetings did no more than spell out and apply to Miss Campbell common knowledge of how Narcotics Anonymous meetings are conducted.
28. But I would not wish to found my conclusion solely on this point. I prefer to proceed to the next stage and consider how the tension between privacy and freedom of expression should be resolved in this case, on the assumption that the information regarding Miss Campbell's attendance at Narcotics Anonymous meetings retained its private character. At this stage I consider Miss Campbell's claim must fail. I can state my reason very shortly. On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose.
29. It is at this point I respectfully consider Morland J. fell into error. Having held that the details of Miss Campbell's attendance at Narcotics Anonymous had the necessary quality of confidentiality, the judge seems to have put nothing into the scales under article 10 when striking the balance between articles 8 and 10. This was a misdirection. The need to be free to disseminate information regarding Miss Campbell's drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.
30. There remains category (5): the photographs taken covertly of Miss Campbell in the road outside the building she was attending for a meeting of Narcotics Anonymous. I say at once that I wholly understand why Miss Campbell felt she was being hounded by the 'Mirror'. I understand also that this could be deeply distressing, even damaging, to a person whose health was still fragile. But this is not the subject of complaint. Miss Campbell, expressly, makes no complaint about the taking of the photographs. She does not assert that the taking of the photographs was itself an invasion of privacy which attracts a legal remedy. The complaint regarding the photographs is of precisely the same character as the nature of the complaints regarding the text of the articles: the information conveyed by the photographs was private information. Thus the fact that the photographs were taken surreptitiously adds nothing to the only complaint being made.
31. In general photographs of people contain more information than textual description. That is why they are more vivid. That is why they are worth a thousand words. But the pictorial information in the photographs illustrating the offending article of 1 February 2001 added nothing of an essentially private nature. They showed nothing untoward. They conveyed no private information beyond that discussed in the article. The group photograph showed Miss Campbell in the street exchanging warm greetings with others on the doorstep of a building. There was nothing undignified or distrait about her appearance. The same is true of the smaller picture on the front page. Until spotted by counsel in the course of preparing the case for oral argument in your Lordships' House no one seems to have noticed that a sharp eye could just about make out the name of the café on the advertising board on the pavement.
32. For these reasons and those given by my noble and learned friend Lord Hoffmann, I agree with the Court of Appeal that Miss Campbell's claim fails. It is not necessary for me to pursue the claim based on the Data Protection Act 1998. The parties were agreed that this claim stands or falls with the outcome of the main claim.
33. In reaching this overall conclusion I have well in mind the distress that publication of the article on 1 February 2001 must have caused Miss Campbell. Public exposure of this sort, especially for someone striving to cope with a serious medical condition, would almost inevitably be extremely painful. But it is right to recognise the source of this pain and distress. First, Miss Campbell realised she had been betrayed by an associate or fellow sufferer. Someone whom she trusted had told the newspaper she was attending Narcotics Anonymous meetings. This sense of betrayal, and consequential anxiety about continuing to attend Narcotics Anonymous meetings, flowed from her becoming aware she had been betrayed. The newspaper articles were only the means by which she became aware of her betrayal. Secondly, Miss Campbell realised her addiction was now public knowledge, as was the fact she was undergoing treatment. She realised also that it was now public knowledge that she had repeatedly lied. Thirdly, as already mentioned, Miss Campbell would readily feel she was being harassed by the 'Mirror' employing a photographer to 'spy' on her.
34. That Miss Campbell should suffer real distress under all these heads is wholly understandable. But in respect of none of these causes of distress does she have reason for complaint against the newspaper for misuse of private information. Against this background I find it difficult to envisage Miss Campbell suffered any significant additional distress based on public disclosure that her chosen form of treatment was attendance at Narcotics Anonymous meetings.