Is there a new law of privacy?

Naomi Campbell v Mirror Group Newspapers

In the first major case to test the balance between freedom of expression in the press and individual privacy since the introduction of the Human Rights Act, the House of Lords ruled by a 3:2 majority against the Daily Mirror in favour of Naomi Campbell.

At issue was a Daily Mirror article entitled "Naomi: I am a drug addict", which published details of Miss Campbell's treatment for drug addiction together with photographs of her leaving a Narcotics Anonymous meeting on London's King's Road. The tone of the article was sympathetic, but pointed out that Miss Campbell had frequently and publicly denied taking drugs on several occasions – a claim the Daily Mirror had now proven false. On appeal (Campbell v. MGN Limited [2003] Q.B. 633), the Court of Appeal overturned Morland J's judgment, on the basis that the published information complained of was a legitimate part of the journalistic package, with the detail necessary to carry credibility, designed to demonstrate that Miss Campbell had deceived the public by repeatedly stating she did not take drugs; and that publication was justified in the public interest. Lord Philips, delivering the unanimous verdict, stated "where a public figure chooses to make untrue pronouncements about his, or her, private life, the press will normally be entitled to set the record straight."

The House of Lords reversed the Court of Appeal decision and upheld the decision at first instance that there had been a breach of Miss Campbell's rights under the law of confidence. Accordingly, the Daily Mirror must now pay Miss Campbell £3,500 compensation, plus costs – said to amount now to over £1million.

Lord Hope said: "despite the weight that must be given to the right to freedom of expression the press needs, if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell's right to privacy which cannot be justified." Therefore, despite the fact that this was a majority and not a unanimous decision, it appears to be an important statement of current UK law in the field of privacy. Lord Carswell, Lord Hope and Baroness Hale held that Miss Campbell was entitled to compensation for the intrusion into her private life, whereas Lord Hoffman and Lord Nicholls dissented in support of the Daily Mirror.

The issue facing the Courts was the balance between personal privacy and freedom of expression, and whether the position should be different when the person in question is a celebrity with "a long and symbiotic relationship with the media".

Majority Decision Allowing the Appeal

Lord Hope agreed that Miss Campbell was not entitled to complain that her status as an addict was given publicity. However, he also recognised that: "there are few areas of the life of an individual that are more in need of protection on the grounds of privacy than the combating of addiction to drugs or to alcohol", and felt that the success of Miss Campbell's medical treatment (the therapeutic value of Narcotics Anonymous being long established) was entirely dependant on the protection of her privacy. He referred to the judgment in Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd (2001) 185 ALR, which asked if disclosure would be offensive to the reasonable man (and pointed to US jurisprudence which showed this to be a subjective test i.e. would it be offensive to every reasonable person when in the same situation). He considered that the disclosure of medical treatment would always be considered offensive to the person suffering from a condition and therefore allowed the appeal.

Baroness Hale agreed that "it has always been accepted that information about a person's health and treatment for ill health is both private and confidential" and held that all information about her addiction and attendance was private and confidential in that it related to her physical and mental health. Whilst certain aspects were justified by the public interest exemption, the Daily Mirror went too far with the photographs and accompanying text in revealing details of treatment: "People trying to recover from drug addiction need considerable dedication and commitment, along with constant reinforcement from those around them. Blundering in when matters are acknowledged to be at a fragile state may do great harm" – harm which was not outweighed by freedom of expression.

Lord Carswell stated that although the press were entitled to set the record straight regarding Miss Campbell's dependency, the surreptitious photography and level of detail intruded too far into what was essentially her medical treatment – her private affair.

Dissenting Decisions

Lord Nicholls pointed out that there is no general cause of action for invasion of privacy in the UK, unlike the USA, but did recognise it as a fast developing area of law since the enactment of the Human Rights Act in 1998. The case focused on only one aspect of an individual's privacy – wrongful disclosure of private information – which has long been actionable in UK through the tort of breach of confidence. Lord Nicholls recognised the classic exposition of breach of confidence in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47-48, based on information of a confidential nature being disclosed by one person to another in circumstances "importing an obligation of confidence", and confirmed that there is no need for an initial confidential relationship – the law imposes a duty of confidence whenever a person receives information he knows or ought to know is fairly to be regarded as confidential - in short, where there is a misuse of private information.

Lord Hoffman felt that, as the main substance of the story was justified (that Miss Campbell took drugs and had lied publicly about this fact), the newspaper should not be held liable for publishing additional "unnecessary" (in a judge's eyes) personal information which acts as verification. As stated by the European Court of Human Rights in Fressoz and Roire v. France [2001] 2 AC 12,7 a journalist needs reasonable latitude to present a story. Moreover, he recognised that photographs (which in this instance were not embarrassing in nature, nor taken through intrusion into a private space) were an essential component of the commercial enterprise of tabloid journalism: "The picture carried the message, more strongly than the text alone, that the Mirror's story was true. So the decision to publish the pictures was… within the margin of editorial judgement".

Conclusion

It seems clear that the majority decision considered that it was acceptable to comment on the fact of Miss Campbell's drug addiction and the fact that she was receiving treatment. However, to proceed to give details of the treatment at Narcotics Anonymous and to publish photos was not necessary to give the story extra credibility. By contrast, the dissenting judges did not consider that the extra detail made any real difference and took into account the practical demands and timescales that the press work under. Although the first instance decision considered the Data Protection Act 1998, the House of Lords did not address this as they did not consider that it added anything to the main claim of breach of privacy.

Commenting on the judgment, Daily Mirror editor of the time, Piers Morgan, highlighted that "five senior judges found for the Mirror throughout the various hearings in this case, four for Naomi Campbell. Yet she wins". Clearly, the case was delicately balanced. It has been said that this case has created a new law of privacy. However, in fact, the Judges have simply used the law of confidence to prevent what Lord Nicholls called "the misuse of private information". As Lord Nicholls pointed out, the law of confidence does not need an initial confidential relationship to protect what is clearly confidential information, however, this maybe countered by what is in the public interest. What the law regards as the "public interest" is yet to be defined…

Lord Coe injunction to stop affair story

The recent application by Lord Coe to prevent the Mail on Sunday and Sunday Mirror publishing a story about a love affair with Ms. Landers looked at the issue of public interest. The injunction was refused because the Judge was not convinced that at trial Lord Coe would secure a permanent injunction. The Judge found that the freedom of the press to print something of public interest and Ms. Landers' right to free speech outweighed Lord Coe's right to keep personal information private.

The Courts have made it clear therefore, that the recent Naomi case has not substantially changed the law on privacy. Where there is a public interest in keeping the information private eg. Details of medical treatment, then the law will assist that individual. However, details of extramarital affairs will not be given the same treatment particularly, where one of the parties wishes to speak about it publicly and some details of the affair are public knowledge already.

TV Broadcast not confidential information

Finally, in this update, the recent case of Tillery Valley Foods v Channel Four Television showed that the law of confidence could not be used to prevent the broadcast of a TV programme on the basis that secret filming of the company premises and workers did not contain confidential information.

Tillery produces and supplies chilled frozen meals to healthcare and public sector markets. A journalist working for the investigative programme Despatches gained employment with Tillery and then proceeded to secretly film the activities of the company. The footage was to be used to show that Tillery did not have proper food hygiene practices. These included employees sneezing and coughing over food, eating on the production line and using improper re-heating procedures.

Tillery applied for an order to restrain the broadcast of the programme based on breach of trust and confidence. Tillery was not trying to restrain the broadcast absolutely but wanted an opportunity to view the film, test information derived from it and respond to allegations made. They acknowledged that this was a "novel" approach but said "all rights were a fortiori novel once". An alternative claim based on misuse of private information was also made but dropped in the initial stages of the application.

The Judge dismissed the application on the grounds that there was no prospect of the claims succeeding at trial because there was no information with the relevant quality of confidentiality. The secret filming of the company's activities did not have the relevant quality of confidential information. The Judge said the developing law of privacy may have some bearing but this claim was dropped.

Tillery also sought to rely on the confidentiality clause in the employee's contract. However, the Judge held that the confidentiality clause amounted to a contractual bar on disclosure of information but did not vest all information with the character of confidentiality where it would not otherwise have it. The employee may have abused his trust but, even if he did, that does not create confidentiality in information conveyed by the employee. Therefore, there may have been a breach of contract but there was not a breach of confidentiality.

Of course, even if the information had been held to be confidential, there was the second hurdle that confidentiality will not be protected if public interest requires disclosure. In this case Tillery expressly conceded that there was a public interest in disclosure of the film.

The Judge concluded:

"The truth of the matter is that this case is not about confidentiality at all. So far as Tillery has a claim it will be a claim based on the fact (if it be a fact) that the reporting is inaccurate and contains falsehoods. If and insofar as the reporting turns out to be accurate (as to which I can, of course, say nothing) then it cannot have a legitimate complaint in law. If it is inaccurate it will have a claim for the damage caused by the falsehood. In other words this is really a defamation action in disguise."

Conclusion

The potential claim of misuse of private information was probably the most interesting aspect of this case which, had it been continued, might have produced some guidance for the future. However, as found in the Lord Coe injunction the freedom of the press and public interest would probably have outweighed the interests of Tillery in keeping the information private.

However, despite the widespread press coverage and headlines, these cases do not significantly change the position.

Therefore, the law has been clarified that where there is a misuse of private information, it will be an infringement to publish the information unless it is outweighed by freedom of expression and public interest. In terms of "kiss and tell" stories and malpractices the principles of freedom of expression and public interest are likely to outweigh an individual's desire to keep the details private.

For further information, please contact Susan Barty by telephone on +44 (0) 207 367 2542 or by email at [email protected], Lucy Kilshaw by telephone on +44 (0) 207 367 2044 or by email at [email protected] or Lydia Watts by telephone on +44 (0) 207 367 2054 or by email at [email protected]