Judgments - Campbell (Appellant) v.
MGN Limited (Respondents)
HOUSE OF LORDS
SESSION 2003-04
[2004] UKHL 22
on appeal from: [2002] EWCA Civ 1373 OPINI
ONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Campbell (Appellant)
v.
MGN Limited (Respondents)
ON
THURSDAY 6 MAY 2004
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Campbell (Appellant) v. MGN Limited (Respondents)
[2004] UKHL 22
THE LORD NICHOLLS OF BIRKENHEAD
My Lords,
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:
'Supermodel Naomi Campbell is attending Narcotics Anonymous meetings
in a courageous bid to beat her addiction to drink and drugs.
The 30-year old has been a regular at counselling sessions for three months,
often attending twice a day.
Dressed in jeans and baseball cap, she arrived at one of NA's lunchtime
meetings this week. Hours later at a different venue she made a low-key
entrance to a women-only gathering of recovered addicts.
Despite her 14million fortune Naomi is treated as just another addict trying
to put her life back together. A source close to her said last night: "She wants
to clean up her life for good.
"She went into modelling when she was very young and it is easy to be led
astray. Drink and drugs are unfortunately widely available in the fashion
world.
"But Naomi has realised she has a problem and has bravely vowed to do
something about it. Everyone wishes her well."
Her spokeswoman at Elite Models declined to comment.'
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:
'She's just another face in the crowd, but the gleaming smile is unmistakeably
Naomi Campbell's.
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 selfpublicity
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 [2002] 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: [2002] EWCA
Civ 1373, [2003] 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 [2003] 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 [1988] 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 [1969]
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) [1990] 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 [2001] 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 [2003] 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 [1969] 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: [2003] 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, nonpublication
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.
35. Nor have I overlooked the further distress caused by the subsequent mean-spirited attack,
with its shabby reference to a chocolate soldier, made by the 'Mirror' on a person known to be
peculiarly vulnerable. If Miss Campbell had a well-founded cause of action against the
newspaper the trial judge rightly recognised that an award of aggravated damages was called
for. But for reasons already given I would dismiss this appeal.
LORD HOFFMANN
My Lords,
36. The House is divided as to the outcome of this appeal, but the difference of opinion
relates to a very narrow point which arises on the unusual facts of this case. The facts are
unusual because the plaintiff is a public figure who had made very public false statements
about a matter in respect of which even a public figure would ordinarily be entitled to privacy,
namely her use of drugs. It was these falsehoods which, as was conceded, made it justifiable,
for a newspaper to report the fact that she was addicted. The division of opinion is whether in
doing so the newspaper went too far in publishing associated facts about her private life. But
the importance of this case lies in the statements of general principle on the way in which the
law should strike a balance between the right to privacy and the right to freedom of
expression, on which the House is unanimous. The principles are expressed in varying
language but speaking for myself I can see no significant differences.
37. Naomi Campbell is a famous fashion model who lives by publicity. What she has to
sell is herself: her personal appearance and her personality. She employs public relations
agents to present her personal life to the media in the best possible light just as she employs
professionals to advise her on dress and make-up. That is no criticism of her. It is a trade like
any other. But it does mean that her relationship with the media is different from that of
people who expose less of their private life to the public.
38. The image which she has sought to project of herself to the international media is that
of a black woman who started with few advantages in life and has by her own efforts attained
international success in a glamorous profession. There is much truth in this claim.
Unfortunately she has also given wide publicity, in interviews with journalists and on
television, to a claim which was false, namely that (unlike many of her colleagues in the
fashion business) she had not succumbed to the temptation to take drugs.
39. In January 2001 the Mirror obtained information that Ms Campbell had acknowledged
her drug dependency by going regularly to meetings of Narcotics Anonymous ("NA") for help
in ridding herself of the addiction. It was told that she would be going to a meeting at an
address in the King's Road. The informant was either a member of Ms Campbell's numerous
entourage or another participant in the meetings. The Mirror sent a photographer to sit
unobtrusively in a car. As she left the meeting, he took a couple of pictures of her on the
pavement.
40. On 1 February 2001 the Mirror published an article on the front page under the
headline: "Naomi: I am a drug addict". It was accompanied by one of the pictures. The text
said that she was attending NA meetings in a "courageous bid" to beat her addiction. She had
been "a regular at counselling sessions for three months, often attending twice a day." It
described her dress (jeans and a baseball cap) and said that later the same day she made a
"low-key entrance" to a women-only gathering. A source was quoted as saying that it was
easy in the fashion world to be led astray but that "Naomi has realised she has a problem and
has bravely vowed to do something about it."
41. There was more on pages 12 and 13, with another picture of her in the doorway of the
house where the meeting took place. The address was not identified but someone very
familiar with that part of the King's Road could no doubt have recognised it. The article said
that her commitment to conquering her problem was such that "she regularly goes twice a day
to group counselling". The article described the way group counselling at NA worked: the
anonymity which meant that to the group she was "simply Naomi, the addict. Not the
supermodel." A friend was quoted as saying "She is still fragile, but she is getting healthy".
Later it said that her "long rumoured problems with drugs" had emerged in public in 1997
when she was rushed to hospital, reportedly after taking an overdose, but that she had then
insisted that it was an allergic reaction: "It's ridiculous. I've never had a drug problem." But,
said the article "those closest to her knew the truth". There was also a good deal more about
men with whom she had been associated and other past incidents, taken no doubt from a
bulging cuttings file.
42. On the same day as the article appeared, Ms Campbell issued proceedings for damages
for "breach of confidence and/or unlawful invasion of privacy". The narrowness of the dispute
between the parties emerged at the trial when Mr Caldecott QC conceded that because of the
publicity which Ms Campbell had given to her claim that she had "never had a drug problem"
the Mirror was entitled to publish that she was an addict and also, in fairness to her, that she
was now attempting to deal with it. The matters which were alleged to be in breach of
confidence or an unlawful invasion of privacy were, first, the fact that she was attending
meetings at NA, secondly, the published details of her attendance and what happened at the
meetings and thirdly, the photographs taken in the street without her knowledge or consent.
43. In order to set both the concession and the residual claim in their context and to
identify the point of law at issue, I must say something about the cause of action on which Ms
Campbell relies. This House decided in Wainwright v Home Office [2003] 3 WLR 1137 that
there is no general tort of invasion of privacy. But 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. One of these is the
equitable action for breach of confidence, which has long been recognised as capable of being
used to protect privacy. Thus in the seminal case of Prince Albert v Strange (1849) 2 De G &
Sm 293; 1 Mac & G 25 the defendant was a publisher who had obtained copies of private
etchings made by the Prince Consort of members of the royal family at home. The publisher
had got them from an employee of a printer to whom the Prince had entrusted the plates.
Vice-Chancellor Knight-Bruce, in granting an injunction restraining the publication of a
catalogue containing descriptions of etchings, said (2 De G & SM 293, 313) that it was "an
intrusion - an unbecoming and unseemly intrusion...offensive to that inbred sense
of propriety natural to every man - if, intrusion, indeed, fitly describes a sordid spying
into the privacy of domestic life - into the home (a word hitherto sacred among us)..."
44. But although the action for breach of confidence could be used to protect privacy in the
sense of preserving the confidentiality of personal information, it was not founded on the
notion that such information was in itself entitled to protection. Breach of confidence was an
equitable remedy and equity traditionally fastens on the conscience of one party to enforce
equitable duties which arise out of his relationship with the other. So the action did not
depend upon the personal nature of the information or extent of publication but upon whether
a confidential relationship existed between the person who imparted the information and the
person who received it. Equity imposed an obligation of confidentiality upon the latter and
(by a familiar process of extension) upon anyone who received the information with actual or
constructive knowledge of the duty of confidence.
45. Thus the cause of action in Prince Albert v Strange was based upon the defendant's
actual or constructive knowledge of the confidential relationship between the Prince Consort
and the printer to whom he had entrusted the plates of his etchings. It was not essential that
the information should concern the Prince's family life or be in any other way personal. Any
confidential information would have done. Nor was it essential that the defendant should have
intended widespread publication. Communication to a single unauthorised person would have
been enough. Many of the cases on breach of confidence are concerned with the
communication of commercially valuable information to trade rivals and not with anything
that could be described as a violation of privacy.
46. In recent years, however, there have been two developments of the law of confidence,
typical of the capacity of the common law to adapt itself to the needs of contemporary life.
One has been an acknowledgement of the artificiality of distinguishing between confidential
information obtained through the violation of a confidential relationship and similar
information obtained in some other way. The second has been the acceptance, under the
influence of human rights instruments such as article 8 of the European Convention, of the
privacy of personal information as something worthy of protection in its own right.
47. The first development is generally associated with the speech of Lord Goff of
Chieveley in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281,
where he gave, as illustrations of cases in which it would be illogical to insist upon violation
of a confidential relationship, the "obviously confidential document...wafted by an electric
fan out of a window into a crowded street" and the "private diary...dropped in a public place."
He therefore formulated the principle as being that?
"a duty of confidence arises when confidential information comes to the knowledge of
a person...in circumstances where he has notice, or is held to have agreed, that the
information is confidential, with the effect that it would be just in all the circumstances
that he should be precluded from disclosing the information to others."
48. This statement of principle, which omits the requirement of a prior confidential
relationship, was accepted as representing current English law by the European Court of
Human Rights in Earl Spencer v United Kingdom (1998) 25 EHRR CD 105 and was applied
by the Court of Appeal in A v B plc [2003] QB 195, 207. It is now firmly established.
49. The second development has been rather more subtle. Until the Human Rights Act
1998 came into force, there was no equivalent in English domestic law of article 8 the
European Convention or the equivalent articles in other international human rights
instruments which guarantee rights of privacy. So the courts of the United Kingdom did not
have to decide what such guarantees meant. Even now that the equivalent of article 8 has been
enacted as part of English law, it is not directly concerned with the protection of privacy
against private persons or corporations. It is, by virtue of section 6 of the 1998 Act, a
guarantee of privacy only against public authorities. Although the Convention, as an
international instrument, may impose upon the United Kingdom an obligation to take some
steps (whether by statute or otherwise) to protect rights of privacy against invasion by private
individuals, it does not follow that such an obligation would have any counterpart in domestic
law.
50. What human rights law has done is to identify private information as something worth
protecting as an aspect of human autonomy and dignity. And this recognition has raised
inescapably the question of why it should be worth protecting against the state but not against
a private person. There may of course be justifications for the publication of private
information by private persons which would not be available to the state - I have particularly
in mind the position of the media, to which I shall return in a moment - but I can see no
logical ground for saying that a person should have less protection against a private individual
than he would have against the state for the publication of personal information for which
there is no justification. Nor, it appears, have any of the other judges who have considered the
matter.
51. The result of these developments has been a shift in the centre of gravity of the action
for breach of confidence when it is used as a remedy for the unjustified publication of
personal information. It recognises that the incremental changes to which I have referred do
not merely extend the duties arising traditionally from a relationship of trust and confidence to
a wider range of people. As Sedley LJ observed in a perceptive passage in his judgment in
Douglas v Hello! Ltd [2001] QB 967, 1001, the new approach takes a different view of the
underlying value which the law protects. Instead of the cause of action being based upon the
duty of good faith applicable to confidential personal information and trade secrets alike, it
focuses upon the protection of human autonomy and dignity - the right to control the
dissemination of information about one's private life and the right to the esteem and respect of
other people.
52. These changes have implications for the future development of the law. They must
influence the approach of the courts to the kind of information which is regarded as entitled to
protection, the extent and form of publication which attracts a remedy and the circumstances
in which publication can be justified.
53. In this case, however, it is unnecessary to consider these implications because the
cause of action fits squarely within both the old and the new law. The judge found that the
information about Ms Campbell's attendance at NA had been communicated to the Mirror in
breach of confidence and that the Mirror must have known that the information was
confidential. As for human autonomy and dignity, I should have thought that the extent to
which information about one's state of health, including drug dependency, should be
communicated to other people was plainly something which an individual was entitled to
decide for herself: compare Z v Finland (1997) 25 EHRR 371, 405, at para 95. The whole
point of NA is that participants in its meetings are anonymous. It offers them support and the
possibility of recovery without requiring them to allow information about their drug
dependency to become more widely known. If Ms Campbell had been an ordinary citizen, I
think that the publication of information about her attendance at NA would have been
actionable and I do not understand the Mirror to argue otherwise.
54. What is said to make this case different is, first, that Ms Campbell is a public figure
who has sought publicity about various aspects of her private life and secondly, that the
aspects of her private life which she has publicised include her use of drugs, in respect of
which she has made a false claim. The Mirror claims that on these grounds it was entitled in
the public interest to publish the information and photographs and that its right to do so is
protected by article 10 of the European Convention.
55. I shall first consider the relationship between the freedom of the press and the common
law right of the individual to protect personal information. Both reflect important civilised
values, but, as often happens, neither can be given effect in full measure without restricting
the other. How are they to be reconciled in a particular case? There is in my view no question
of automatic priority. Nor is there a presumption in favour of one rather than the other. The
question is rather the extent to which it is necessary to qualify the one right in order to protect
the underlying value which is protected by the other. And the extent of the qualification must
be proportionate to the need: see Sedley LJ in Douglas v Hello! Ltd [2001] QB 967, 1005,
para 137.
56. If one takes this approach, there is often no real conflict. Take the example I have just
given of the ordinary citizen whose attendance at NA is publicised in his local newspaper.
The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the
civil and political values which underlie press freedom make it necessary to deny the citizen
the right to protect such personal information? Not at all. While there is no contrary public
interest recognised and protected by the law, the press is free to publish anything it likes.
Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the
publication may be. But when press freedom comes into conflict with another interest
protected by the law, the question is whether there is a sufficient public interest in that
particular publication to justify curtailment of the conflicting right. In the example I have
given, there is no public interest whatever in publishing to the world the fact that the citizen
has a drug dependency. The freedom to make such a statement weighs little in the balance
against the privacy of personal information.
57. One must therefore proceed to consider the grounds why the Mirror say there was a
public interest in its publication of information about Ms Campbell which it would not have
been justified in publishing about someone else. First, there is the fact that she is a public
figure who has had a long and symbiotic relationship with the media. In my opinion, that
would not in itself justify publication. A person may attract or even seek publicity about some
aspects of his or her life without creating any public interest in the publication of personal
information about other matters. I think that the history of Ms Campbell's relationship with
the media does have some relevance to this case, to which I shall return in due course, but that
would not without more justify publication of confidential personal information.
58. The reason why Mr Caldecott concedes that the Mirror was entitled to publish the fact
of her drug dependency and the fact that she was seeking treatment is that she had specifically
given publicity to the very question of whether she took drugs and had falsely said that she
did not. I accept that this creates a sufficient public interest in the correction of the impression
she had previously given.
59. The question is then whether the Mirror should have confined itself to these bare facts
or whether it was entitled to reveal more of the circumstantial detail and print the
photographs. If one applies the test of necessity or proportionality which I have suggested,
this is a matter on which different people may have different views. That appears clearly
enough from the judgments which have been delivered in this case. But judges are not
newspaper editors. It may have been possible for the Mirror to satisfy the public interest in
publication with a story which contained less detail and omitted the photographs. But the
Mirror said that they wanted to show themselves sympathetic to Ms Campbell's efforts to
overcome her dependency. For this purpose, some details about her frequency of attendance at
NA meetings were needed. I agree with the observation of the Court of Appeal, at p 660, para
52, that it is harsh to criticise the editor for "painting a somewhat fuller picture in order to
show her in a sympathetic light."
60. To someone who started with the (legitimately communicated) knowledge that she was
seeking treatment, there was nothing special about the additional details. The fact that she was
going to NA would come as no surprise; there are, according to its web-site, 31,000 NA
meetings a week in 100 different countries. The anonymity of participants and the general
nature of the therapy is common knowledge. The details of her frequency of attendance
(which were in fact inaccurate) could not be said to be discreditable or embarrassing. The
relatively anodyne nature of the additional details is in my opinion important and
distinguishes this case from cases in which (for example) there is a public interest in the
disclosure of the existence of a sexual relationship (say, between a politician and someone
whom she has appointed to public office) but the addition of salacious details or intimate
photographs is disproportionate and unacceptable. The latter, even if accompanying a
legitimate disclosure of the sexual relationship, would be too intrusive and demeaning.
61. That brings me to what seems to be the only point of principle which arises in this case.
Where the main substance of the story is conceded to have been justified, should the
newspaper be held liable whenever the judge considers that it was not necessary to have
published some of the personal information? Or should the newspaper be allowed some
margin of choice in the way it chooses to present the story?
62. In my opinion, it would be inconsistent with the approach which has been taken by the
courts in a number of recent landmark cases for a newspaper to be held strictly liable for
exceeding what a judge considers to have been necessary. The practical exigencies of
journalism demand that some latitude must be given. Editorial decisions have to be made
quickly and with less information than is available to a court which afterwards reviews the
matter at leisure. And if any margin is to be allowed, it seems to me strange to hold the
Mirror liable in damages for a decision which three experienced judges in the Court of
Appeal have held to be perfectly justified.
63. Ms Campbell now concedes the truth of the essentials of the Mirror's story but the
editor said in evidence that he thought at the time, in view of her previous falsehoods, that it
was necessary to include some detail and photographs by way of verification. It is
unreasonable to expect that in matters of judgment any more than accuracy of reporting,
newspapers will always get it absolutely right. To require them to do so would tend to inhibit
the publication of facts which should in the public interest be made known. That was the basis
of the decision of this House in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and I
think that it is equally applicable to the publication of private personal information in the
cases in which the essential part of that information can legitimately be published.
64. A similar point, in relation to the protection of private information, was made by the
European Court of Human Rights in Fressoz and Roire v France (2001) 31 EHRR 28. Le
Canard enchaîné published the salary of M. Calvet, the chairman of Peugeot, (which was
publicly available information) and also, by way of confirmation, photographs of the relevant
part of his tax assessment, which was confidential and could not lawfully be published. The
Strasbourg court said that the conviction of the journalists for publishing the assessment
infringed their right of free speech under article 10:
"If, as the Government accepted, the information about M. Calvet's annual income was
lawful and its disclosure permitted, the applicants' conviction merely for having
published the documents in which the information was contained, namely the tax
assessments, cannot be justified under article 10. In essence, that article leaves it for
journalists to decide whether or not it is necessary to reproduce such documents to
ensure credibility."
65. In my opinion the Court of Appeal was right in the present case to say [2003] QB 633,
662, para 64:
"Provided that publication of particular confidential information is justifiable in the
public interest, the journalist must be given reasonable latitude as to the manner in
which that information is conveyed to the public or his article 10 right to freedom of
expression will be unnecessarily inhibited."
66. It is only in connection with the degree of latitude which must be allowed to the press
in the way it chooses to present its story that I think it is relevant to consider Ms Campbell's
relationship with the media. She and they have for many years both fed upon each other. She
has given them stories to sell their papers and they have given her publicity to promote her
career. This does not deprive Ms Campbell of the right to privacy in respect of areas of her
life which she has not chosen to make public. But I think it means that when a newspaper
publishes what is in substance a legitimate story, she cannot insist upon too great a nicety of
judgment in the circumstantial detail with which the story is presented.
67. The trial judge described (at paragraph 35) the "essential question" as being--
"whether even if a public figure which includes an international celebrity, such as
Miss Naomi Campbell, courts and expects media exposure, she is left with a residual
area of privacy which the court should protect if its revelation would amount to a
breach of confidentiality."
68. To that question I would certainly answer yes, but it was not the question which arose
in this case. Accepting that Ms Campbell has a "residual area of privacy", the question is
whether it was infringed by the publication in this case. To answer that question one must
assess the disclosures said to be objectionable in the light of the disclosures conceded to be
legitimate. One must then ask whether the journalists exceeded the latitude which should be
allowed to them in presenting their story.
69. The judge made no attempt to answer either of these questions. He said:
"In my judgment clearly the publication of information about details of her therapy in
regularly attending meetings of [NA] was to Miss Naomi Campbell's detriment. It
was, viewed objectively, likely to affect adversely her attendance and participation in
therapy meetings."
70. The judge did not analyse the details which were said to be likely to have this effect or
explain why they should have this effect when the bare revelation that she was a drug addict
seeking therapy would not. The question of the effect of the publication upon Ms Campbell's
therapy was not pleaded. She is resident in the United States but travels widely and often
visits London. In her witness statement she said that since the article she had not been back to
that particular meeting place but had attended a few meetings in England and continued to
attend NA meetings in other countries. The question was not further explored. Nor did the
judge consider whether, even assuming that the article had included unnecessary details, it
was within the margin of judgment which the newspaper should be allowed. In my opinion it
was and the judge's failure to take this into account was an error of principle which the Court
of Appeal was right to correct.
71. As for the Court of Appeal's own approach, I do not understand the submission that it
erred in saying, at p 659, para 48, that it did not equate "the information that Miss Campbell
was receiving therapy from [NA] ... with disclosure of clinical details of medical treatment".
I do not imagine that the Court of Appeal was unaware of the nature of the therapy provided
by NA or was attempting some obscure metaphysical distinction. It was saying only that the
support provided by NA for large numbers of drug addicts is so well known that it cannot be
compared with the details of individual clinical treatment. This seems to me no more than
common sense.
72. That leaves the question of the photographs. In my opinion a photograph is in principle
information no different from any other information. It may be a more vivid form of
information than the written word ("a picture is worth a thousand words"). That has to be
taken into account in deciding whether its publication infringes the right to privacy of
personal information. The publication of a photograph cannot necessarily be justified by
saying that one would be entitled to publish a verbal description of the scene: see Douglas v
Hello! Ltd [2001] QB 967. But the principles by which one decides whether or not the
publication of a photograph is an unjustified invasion of the privacy of personal information
are in my opinion the same as those which I have already discussed.
73. In the present case, the pictures were taken without Ms Campbell's consent. That in my
opinion is not enough to amount to a wrongful invasion of privacy. The famous and even the
not so famous who go out in public must accept that they may be photographed without their
consent, just as they may be observed by others without their consent. As Gleeson CJ said in
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13,
para 41:
"Part of the price we pay for living in an organised society is that we are exposed to
observation in a variety of ways by other people."
74. But the fact that we cannot avoid being photographed does not mean that anyone who
takes or obtains such photographs can publish them to the world at large. In the recent case of
Peck v United Kingdom (2003) 36 EHRR 41 Mr Peck was filmed on a public street in an
embarrassing moment by a CCTV camera. Subsequently, the film was broadcast several times
on the television. The Strasbourg court said (at p. 739) that this was an invasion of his privacy
contrary to article 8:
"the relevant moment was viewed to an extent which far exceeded any exposure to a
passer-by or to security observation and to a degree surpassing that which the
applicant could possibly have foreseen when he walked in Brentwood on August 20,
1995."
75. In my opinion, therefore, the widespread publication of a photograph of someone
which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in
a public place, may be an infringement of the privacy of his personal information. Likewise,
the publication of a photograph taken by intrusion into a private place (for example, by a long
distance lens) may in itself by such an infringement, even if there is nothing embarrassing
about the picture itself: Hellewell v Chief Constable of Derbyshire [1985] 1 WLR 804, 807.
As Lord Mustill said in R v Broadcasting Standards Commission, Ex p BBC [2001] QB 885,
900, "An infringement of privacy is an affront to the personality, which is damaged both by
the violation and by the demonstration that the personal space is not inviolate."
76. In the present case, however, there was nothing embarrassing about the picture, which
showed Ms Campbell neatly dressed and smiling among a number of other people. Nor did
the taking of the picture involve an intrusion into private space. Hundreds of such "candid"
pictures of Ms Campbell, taken perhaps on more glamorous occasions, must have been
published in the past without objection. The only ground for claiming that the picture was a
wrongful disclosure of personal information was by virtue of the caption, which said that she
was going to or coming from a meeting of NA. But this in my opinion added nothing to what
was said in the text.
77. No doubt it would have been possible for the Mirror to have published the article
without pictures. But that would in my opinion again be to ignore the realities of this kind of
journalism as much as to expect precision of judgment about the amount of circumstantial
detail to be included in the text. We value the freedom of the press but the press is a
commercial enterprise and can flourish only by selling newspapers. From a journalistic point
of view, photographs are an essential part of the story. The picture carried the message, more
strongly than anything in the text alone, that the Mirror's story was true. So the decision to
publish the pictures was in my opinion within the margin of editorial judgment and something
for which appropriate latitude should be allowed.
78. I would therefore dismiss the appeal.
LORD HOPE OF CRAIGHEAD
My Lords,
79. The facts of this case have been described by my noble and learned friend Lord
Nicholls of Birkenhead, and I gratefully adopt his account of them. But I should like to say a
few more words about the general background before I explain why I have reached the
conclusion that this appeal must be allowed.
The background
80. The business of fashion modelling, in which the appellant Naomi Campbell has built
up such a powerful reputation internationally, is conducted under the constant gaze of the
media. It is also highly competitive. It is a context where public reputation as a forceful and
colourful personality adds value to the physical appearance of the individual. Much good can
come of this, if the process is carefully and correctly handled. But there are aspects of Miss
Campbell's exploitation of her status as a celebrity that have attracted criticism. She has been
manipulative and selective in what she has revealed about herself. She has engaged in a
deliberately false presentation of herself as someone who, in contrast to many models, has
managed to keep clear of illegal drugs. The true position, it is now agreed, is that she has
made a practice of abusing drugs. This has caused her medical problems, and it has affected
her behaviour to such an extent that she has required and has received therapy for her
addiction.
81. Paradoxically, for someone in Miss Campbells' position, 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. It is hard to break the habit which has led to the
addiction. It is all too easy to give up the struggle if efforts to do so are exposed to public
scrutiny. The struggle, after all, is an intensely personal one. It involves a high degree of
commitment and of self-criticism. The sense of shame that comes with it is one of the most
powerful of all the tools that are used to break the habit. But shame increases the individual's
vulnerability as the barriers that the habit has engendered are broken down. The smallest hint
that the process is being watched by the public may be enough to persuade the individual to
delay or curtail the treatment. At the least it is likely to cause distress, even to those who in
other circumstances like to court publicity and regard publicity as a benefit.
82. The question in this case is whether the publicity which the respondents gave to Miss
Campbell's drug addiction and to the therapy which she was receiving for it in an article
which was published in "The Mirror" newspaper on 1 February 2001 is actionable on the
ground of breach of confidence. Miss Campbell cannot complain about the fact that publicity
was given in this article to the fact that she was a drug addict. This was a matter of legitimate
public comment, as she had not only lied about her addiction but had sought to benefit from
this by comparing herself with others in the fashion business who were addicted. As the Court
of Appeal observed [2003] QB 633, 658, para 43, where a public figure chooses to make
untrue pronouncements abut his or her private life, the press will normally be entitled to put
the record straight.
83. Miss Campbell's case is that information about the details of the treatment which she
was receiving for the addiction falls to be treated differently. This is because it was not the
subject of any falsehood that was in need of correction and because it was information which
any reasonable person who came into possession of it would realise was obtained in
confidence. The argument was put succinctly in the particulars of her claim, where it was
stated:
"Information about whether a person is receiving medical or similar treatment for
addiction, and in particular details relating to such treatment or the person's reaction to
it, is obviously confidential. The confidentiality is the stronger where, as here,
disclosure would tend to disrupt the treatment and/or its benefits for the person
concerned and others sharing in, or giving, or wishing to take or participate in, the
treatment. The very name 'Narcotics Anonymous' underlines the importance of
privacy in the context of treatment as do the defendants' own words - 'To the rest of
the group she is simply Naomi, the addict.'"
84. The respondents' answer is based on the proposition that the information that was
published about her treatment was peripheral and not sufficiently significant to amount to a
breach of the duty of confidence that was owed to her. They also maintain that the right
balance was struck between Miss Campbell's right to respect for her private life under article
8(1) of the European Convention for the Protection of Human Rights and Fundamental
Freedoms and the right to freedom of expression that is enshrined in article 10(1) of the
Convention.
85. The questions that I have just described seem to me to be essentially questions of fact
and degree and not to raise any new issues of principle. As Lord Woolf CJ said in A v B plc
[2003] QB 195, 207, paras 11(ix) and (x), the need for the existence of a confidential
relationship should not give rise to problems as to the law because a duty of confidence will
arise whenever the party subject to the duty is in a situation where he knows or ought to know
that the other person can reasonably expect his privacy to be protected. The difficulty will be
as to the relevant facts, bearing in mind that, if there is an intrusion in a situation where a
person can reasonably expect his privacy to be respected, that intrusion will be capable of
giving rise to liability unless the intrusion can be justified: see also the exposition in AttorneyGeneral
v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282 by Lord Goff of
Chieveley, where he set out the three limiting principles to the broad general principle that a
duty of confidence arises when confidential information comes to the knowledge of a person
where he has notice that the information is confidential. The third limiting principle is
particularly relevant in this case. This is the principle which may require a court to carry out a
balancing operation, weighing the public interest in maintaining confidence against a
countervailing public interest favouring disclosure.
86. The language has changed following the coming into operation of the Human Rights
Act 1998 and the incorporation into domestic law of article 8 and article 10 of the
Convention. We now talk about the right to respect for private life and the countervailing
right to freedom of expression. The jurisprudence of the European Court offers important
guidance as to how these competing rights ought to be approached and analysed. I doubt
whether the result is that the centre of gravity, as my noble and learned friend Lord Hoffmann
says, has shifted. It seems to me that the balancing exercise to which that guidance is directed
is essentially the same exercise, although it is plainly now more carefully focussed and more
penetrating. As Lord Woolf CJ said in A v B plc [2003] QB 195, 202, para 4, new breadth and
strength is given to the action for breach of confidence by these articles.
87. Where a case has gone to trial it would normally be right to attach a great deal of
weight to the views which the judge has formed about the facts and where he thought the
balance should be struck after reading and hearing the evidence. The fact that the Court of
Appeal felt able to differ from the conclusions which Morland J reached on these issues
brings me to the first point on which I wish to comment.
Was the information confidential?
88. The information contained in the article consisted of the following five elements: (1)
the fact that Miss Campbell was a drug addict; (2) the fact that she was receiving treatment for
her addiction; (3) the fact that the treatment which she was receiving was provided by
Narcotics Anonymous; (4) details of the treatment - for how long, how frequently and at what
times of day she had been receiving it, the nature of it and extent of her commitment to the
process; and (5) a visual portrayal by means of photographs of her when she was leaving the
place where treatment had been taking place.
89. The trial judge drew the line between the first two and the last three elements. Mr
Caldecott QC for Miss Campbell said that he was content with this distinction. So the fact that
she was a drug addict was open to public comment in view of her denials, although he
maintained that this would normally be treated as a medical condition that was entitled to
protection. He accepted that the fact that she was receiving treatment for the condition was
not in itself intrusive in this context. Moreover disclosure of this fact in itself could not harm
her therapy. But he said that the line was crossed as soon as details of the nature and
frequency of the treatment were given, especially when these details were accompanied by a
covertly taken photograph which showed her leaving one of the places where she had been
undertaking it. This was an area of privacy where she was entitled to be protected by an
obligation of confidence.
90. Court of Appeal recognised at the start of their discussion of this point that some
categories of information are well recognised as confidential: [2003] QB 633, 659, para 47.
They noted that these include details of a medical condition or its treatment. But they were not
prepared to accept that information that Miss Campbell was receiving therapy from Narcotics
Anonymous was to be equated with disclosure of clinical details of the treatment of a medical
condition: para 48. This was contrary to the view which Morland J appears to have taken
when he said at para 40 that it mattered not whether therapy was obtained by means of
professional medical input or by alternative means such as group counselling or by organised
meetings between sufferers. The Court of Appeal were also of the view that the publication of
this information was not, in its context, sufficiently significant to shock the conscience and
thus to amount to a breach of the duty of confidence which was owed to her. They accepted
the respondents' argument that disclosure of these details was peripheral. They had regard too
to the fact that some of the additional information that was given in the article was inaccurate.
91. I do not think that the Court of Appeal were right to reject the analogy which the judge
drew between information that Miss Campbell was receiving therapy from Narcotics
Anonymous and information about details of a medical condition or its treatment. Mr Brown
QC for the respondents said that it was not his case that there was an essential difference or,
as he put it, a bright line distinction between therapy and medical treatment. He maintained
that the Court of Appeal were simply drawing attention to a difference of degree. But it seems
to me that there is more in this passage in the Court of Appeal's judgment and its criticism of
the judge's analogy than a difference of degree. The implication of the Court of Appeal's
criticism of the judge's reasoning is that the details of non-medical therapy are less deserving
of protection than the details of a medical condition or its treatment. That seems to be why, as
they put it in para 48, the two "are not to be equated."
92. The underlying question in all cases where it is alleged that there has been a breach of
the duty of confidence is whether the information that was disclosed was private and not
public. There must be some interest of a private nature that the claimant wishes to protect: A v
B Ltd [2003] QB 195, 206, para 11 (vii). In some cases, as the Court of Appeal said in that
case, the answer to the question whether the information is public or private will be obvious.
Where it is not, the broad test is whether disclosure of the information about the individual
("A") would give substantial offence to A, assuming that A was placed in similar
circumstances and was a person of ordinary sensibilities.
93. The trial judge applied the test which was suggested by Gleeson CJ in Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1. In that case the
respondent sought an interlocutory injunction against the broadcasting of a film about its
operations at a bush tail possum processing facility. It showed the stunning and killing of
possums. Gleeson CJ said at pp 11-12, paras 34-35, that information about the respondent's
slaughtering methods was not confidential in its nature and that, while the activities filmed
were carried out on private property, they were not shown, or alleged, to be private in any
other sense. At p 13, para 41 he observed that there was a large area in between what was
necessarily public and what was necessarily private:
"An activity is not private simply because it is not done in public. It does not suffice to
make an act private that, because it occurs on private property, it has such measure of
protection from the public gaze as the characteristics of the property, the nature of the
activity, the locality, and the disposition of the property owner combine to afford.
Certain kinds of information about a person, such as information relating to health,
personal relationships, or finances, may be easy to identify as private, as may certain
kinds of activity which a reasonable person, applying contemporary standards of
morals and behaviour, would understand to be meant to be unobserved. The
requirement that disclosure or observation of information or conduct would be highly
offensive to a reasonable person of ordinary sensibilities is in many circumstances a
useful practical test of what is private."
Applying to the facts of the case the test which he had described in the last sentence of this
paragraph, he said in para 43 that the problem for the respondent was that the activities
secretly observed and filmed were not relevantly private.
94. The test which Gleeson CJ has identified is useful in cases where there is room for
doubt, especially where the information relates to an activity or course of conduct such as the
slaughtering methods that were in issue in that case. But it is important not to lose sight of the
remarks which preceded it. The test is not needed where the information can easily be
identified as private. It is also important to bear in mind its source, and the guidance which the
source offers as to whether the information is public or private. It is taken from the definition
of the privacy tort in the United States, where the right of privacy is invaded if the matter
which is publicised is of a kind that (a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public: Restatement (Second) of the Law of Torts
(1977), p 383, para 625D. The reference to a person of ordinary sensibilities is, as Gleeson CJ
acknowledged in his footnote on p 13, a quotation from William L Prosser, Privacy, (1960)
48 California Law Review 383. As Dean Prosser put it at pp 396-397, the matter made public
must be one which would be offensive and objectionable to a reasonable man of ordinary
sensibilities, who must expect some reporting of his daily activities. The law of privacy is not
intended for the protection of the unduly sensitive.
95. I think that the judge was right to regard the details of Miss Campbell's attendance at
Narcotics Anonymous as private information which imported a duty of confidence. He said
that information relating to Miss Campbells' therapy for drug addiction giving details that it
was by regular attendance at Narcotics Anonymous meetings was easily identifiable as
private. With reference to the guidance that the Court of Appeal gave in A v B plc [2003] QB
195, 206, para 11 (vii), he said that it was obvious that there existed a private interest in this
fact that was worthy of protection. The Court of Appeal, on the other hand, seem to have
regarded the receipt of therapy from Narcotics Anonymous as less worthy of protection in
comparison with treatment for the condition administered by medical practitioners. I would
not make that distinction. Views may differ as to what is the best treatment for an addiction.
But it is well known that persons who are addicted to the taking of illegal drugs or to alcohol
can benefit from meetings at which they discuss and face up to their addiction. The private
nature of these meetings encourages addicts to attend them in the belief that they can do so
anonymously. The assurance of privacy is an essential part of the exercise. The therapy is at
risk of being damaged if the duty of confidence which the participants owe to each other is
breached by making details of the therapy, such as where, when and how often it is being
undertaken, public. I would hold that these details are obviously private.
96. If the information is obviously private, the situation will be one where the person to
whom it relates can reasonably expect his privacy to be respected. So there is normally no
need to go on and ask whether it would be highly offensive for it to be published. The trial
judge nevertheless asked himself, as a check, whether the information that was disclosed
about Miss Campbell's attendance at these meetings satisfied Gleeson CJ's test of
confidentiality. His conclusion, echoing the words of Gleeson CJ, was that disclosure that her
therapy for drug addiction was by regular attendance at meetings of Narcotics Anonymous
would be highly offensive to a reasonable person of ordinary sensibilities. The Court of
Appeal disagreed with this assessment. In para 53 they said that, given that it was legitimate
for the respondents to publish the fact that Miss Campbell was a drug addict and that she was
receiving treatment, it was not particularly significant to add the fact that the treatment
consisted of attendance at meetings of Narcotics Anonymous. In para 54 they said that they
did not consider that a reasonable person of ordinary sensibilities, on reading that Miss
Campbell was a drug addict, would have found it highly offensive, or even offensive. They
acknowledged that the reader might have found it offensive that what were obviously covert
photographs had been taken of her, but that this of itself was not relied upon as a ground for
legal complaint. Having drawn these conclusions they held in para 58 that the publication of
the information of which Miss Campbell complains was not, in its context, sufficiently
significant to amount to a breach of duty of confidence owed to her.
97. This part of the Court of Appeal's examination of the issue appears to have been
influenced by the fact that they did not regard disclosure of the fact that Miss Campbell was
receiving therapy from Narcotics Anonymous capable of being equated with treatment of a
clinical nature. If one starts from the position that a course of therapy which takes this form is
of a lower order, it is relatively easy to conclude that a reasonable person of ordinary
sensibilities would not regard the publication of the further details of her therapy as
particularly significant. But I think that it is unrealistic to look through the eyes of a
reasonable person of ordinary sensibilities at the degree of confidentiality that is to be
attached to a therapy for drug addiction without relating this objective test to the particular
circumstances.
98. Where the person is suffering from a condition that is in need of treatment one has to
try, in order to assess whether the disclosure would be objectionable, to put oneself into the
shoes of a reasonable person who is in need of that treatment. Otherwise the exercise is
divorced from its context. The fact that no objection could be taken to disclosure of the first
two elements in the article does not mean that they must be left out of account in a
consideration as to whether disclosure of the other elements was objectionable. The article
must be read as whole along with the photographs to give a proper perspective to each
element. The context was that of a drug addict who was receiving treatment. It is her
sensibilities that needed to be taken into account. Critical to this exercise was an assessment
of whether disclosure of the details would be liable to disrupt her treatment. It does not
require much imagination to appreciate the sense of unease that disclosure of these details
would be liable to engender, especially when they were accompanied by a covertly taken
photograph. The message that it conveyed was that somebody, somewhere, was following
her, was well aware of what was going on and was prepared to disclose the facts to the media.
I would expect a drug addict who was trying to benefit from meetings to discuss her problem
anonymously with other addicts to find this distressing and highly offensive.
99. The approach which the Court of Appeal took to this issue seems to me, with great
respect, to be quite unreal. I do not think that they had a sound basis for differing from the
conclusion reached by the trial judge as to whether the information was private. They were
also in error, in my opinion, when they were asking themselves whether the disclosure would
have offended the reasonable man of ordinary susceptibilities. The mind that they examined
was the mind of the reader: para 54. This is wrong. It greatly reduces the level of protection
that is afforded to the right of privacy. The mind that has to be examined is that, not of the
reader in general, but of the person who is affected by the publicity. The question is what a
reasonable person of ordinary sensibilities would feel if she was placed in the same position
as the claimant and faced with the same publicity.
100. In P v D [2000] 2 NZLR 591 the claimant was a public figure who was told that
publicity was about to be given to that fact that he had been treated at a psychiatric hospital.
In my opinion the objective test was correctly described and applied by Nicholson J at p 601,
para 39 when he said:
"The factor that the matter must be one which would be highly offensive and
objectionable to a reasonable person of ordinary sensibilities prescribes an objective
test. But this is on the basis of what a reasonable person of ordinary sensibilities would
feel if they were in the same position, that is, in the context of the particular
circumstances. I accept that P has the stated feelings and consider that a reasonable
person of ordinary sensibilities would in the circumstances also find publication of
information that they had been a patient in a psychiatric hospital highly offensive and
objectionable."
That this is the correct approach is confirmed by the Restatement, p 387, which states at the
end of its comment on clause (a) of para 652D:
"It is only when the publicity given to him is such that a reasonable person would feel
justified in feeling seriously aggrieved by it, that the cause of action arises." [emphasis
added]
101. These errors have an important bearing on the question whether the Court of Appeal
were right to differ from the decision of the trial judge on the question where the balance lay
between the private interest of Miss Campbell and the public interest in the publication of
these details.
102. In view of the conclusion that I have reached on this issue it is not necessary for me to
say anything about the weight that the Court of Appeal attached to the inaccuracies, except to
observe that there is a vital difference between inaccuracies that deprive the information of its
intrusive quality and inaccuracies that do not. The inaccuracies that were relied on here fall
into the later category. The length of time that Miss Campbell had been attending meetings
was understated, while the frequency of her attendance at meetings was exaggerated. And the
caption to the photograph in the first article stated that she was arriving at the meeting, when
the fact was that she was leaving it. These were errors of a minor nature only, which did not
affect the overall significance of the details that were published. I would hold that they did not
detract from the private nature of what was being published.
The competing rights of free speech and privacy
103. Morland J did not give any detailed reasons in para 70 of his judgment for his
conclusion that, striking the balance between articles 8 and 10 and having full regard to
section 12(4) of the Human Rights Act 1998, Miss Campbell was entitled to the remedy of
damages. But he did recognise in para 98 that neither article 10 nor article 8 had preeminence,
the one over the other. Court of Appeal's approach to the respondents' entitlement
to publish what they described as the peripheral details was based on their view that the
provision of these details as background to support the story that Miss Campbell was a drug
addict was a legitimate part of the journalistic package which was designed to demonstrate
that she had been deceiving the public when she said that she did not take drugs: [2003] QB
633, 662, para 62. In para 64 they said that its publication was justified in order to give a
factual account that had the detail necessary to carry credibility. But they do not appear to
have attempted to balance the competing Convention rights against each other. No doubt this
was because they had already concluded that these details were peripheral and that their
publication was not, in its context, sufficiently significant to amount to a breach of duty of
confidence: para 58.
104. In my opinion the Court of Appeal's approach is open to the criticism that, because
they wrongly held that these details were not entitled to protection under the law of
confidence, they failed to carry out the required balancing exercise.
105. The context for this exercise is provided by articles 8 and 10 of the Convention. The
rights guaranteed by these articles are qualified rights. Article 8(1) protects the right to respect
for private life, but recognition is given in article 8(2) to the protection of the rights and
freedoms of others. Article 10(1) protects the right to freedom of expression, but article 10(2)
recognises the need to protect the rights and freedoms of others. The effect of these provisions
is that the right to privacy which lies at the heart of an action for breach of confidence has to
be balanced against the right of the media to impart information to the public. And the right of
the media to impart information to the public has to be balanced in its turn against the respect
that must be given to private life.
106. There is nothing new about this, as the need for this kind of balancing exercise was
already part of English law: Attorney General v Guardian Newspapers (No 2) [1990] 1 AC
109, per Lord Goff of Chieveley. But account must now be taken of the guidance which has
been given by the European Court on the application of these articles. As Sedley LJ pointed
out in Douglas v Hello! Ltd [2001] 1 QB 967, 1004, para 135:
"The European Court of Human Rights has always recognised the high importance of
free media of communication in a democracy, but its jurisprudence does not - and
could not consistently with the Convention itself - give article 10(1) the presumptive
priority which is given, for example, to the First Amendment in the jurisprudence of
the United States' courts. Everything will ultimately depend on the proper balance
between privacy and publicity in the situation facing the court."
107. I accept, of course, that the importance which the Court of Appeal attached to the
journalistic package finds support in the authorities. In Jersild v Denmark (1994) 19 EHRR 1,
para 31 the European Court, repeating what was said in Observer and Guardian v United
Kingdom (1992) 14 EHRR 153, para 59, declared that freedom of expression constitutes one
of the essential foundations of a democratic society and that the safeguards to be afforded to
the press are of particular importance. It then added these comments in para 31:
"Whilst the press must not overstep the bounds set, inter alia, in the interest of 'the
protection of the reputation and rights of others', it is nevertheless incumbent on it to
impart information and ideas of public interest. Not only does the press have the task
of imparting such information and ideas: the public also has a right to receive them.
Were it otherwise, the press would be unable to play its vital role of 'public
watchdog'."
108. The freedom of the press to exercise its own judgment in the presentation of
journalistic material was emphasised in a further passage in Jersild's case where the court
said, at p 26, para 31:
"At the same time, the methods of objective and balanced reporting may vary
considerably, depending among other things on the media in question. It is not for this
court, nor for the national courts for that matter, to substitute their own views for those
of the press as to what technique of reporting should be adopted by journalists. In this
context the court recalls that article 10 protects not only the substance of the ideas and
information expressed, but also the form in which they are conveyed."
In Fressoz v France (2001) 31 EHRR 28, 60, para 54 the court said that in essence article
10 leaves it for journalists to decide whether or not it is necessary to reproduce material to
ensure credibility, adding:
"It protects journalists' rights to divulge information on issues of general interest
provided that they are acting in good faith and on an accurate factual basis and provide
'reliable and precise' information in accordance with the ethics of journalism."
109. There was no need for the court in Jersild's case to examine the question how the
article 10 right which was relied on was to be balanced against a competing right under article
8 of the Convention. The applicants maintained that their right to freedom of expression under
article 10 was infringed when they were charged and convicted of committing offences which
resulted from their choice of the material that had been published. The objectionable remarks
which were contained in the television broadcast of a news programme were of a racist
nature. The focus of the case was on the right to impart information and ideas of public
interest and the right of the public to receive such ideas. The Fressoz case on the other hand
was about the disclosure of information which was confidential as it was contained in the
taxpayer's tax file. It was lawful to disclose information about the taxpayer's income. The
question was whether publication of the documents in which that information was contained
could be justified under article 10. So the court addressed itself to the question whether the
objective of preserving fiscal confidentiality, which in itself was legitimate, constituted a
relevant and sufficient justification for the interference with the article 10 right. There was a
balance to be struck by weighing the interference with freedom to disclose against the need
for confidentiality.
110. The need for a balancing exercise to be carried out is also inherent in the provisions of
article 10 itself, as the court explained in Bladet Troms? and Stensaas v Norway (2000) 29
EHRR 125. In that case a newspaper and its editor complained that their right to freedom of
expression had been breached when they were found liable in defamation proceedings for
statements in articles which they had published about the methods used by seal hunters in the
hunting of harp seals. At p 167, para 59 the court said:
"Although the press must not overstep certain bounds, in particular in respect of the
reputation and rights of others and the need to prevent the disclosure of confidential
information, its duty is nevertheless to impart - in a manner consistent with its
obligations and responsibilities - information and ideas on all matters of public
interest."
The court dealt with the question of balance at p169, para 65:
"Article 10 of the Convention does not, however, guarantee a wholly freedom of
expression even with respect to press coverage of matters of serious public concern.
Under the terms of paragraph 2 of the Article the exercise of this freedom carries with
it 'duties and responsibilities' which also apply to the press. These 'duties and
responsibilities' are liable to assume significance when, as in the present case, there is
question of attacking the reputation of private individuals and examining the 'rights of
others'. As pointed out by the government, the seal hunters' right to protection of their
honour and reputation is itself internationally recognised under Article 17 of the
International Covenant on Civil and Political Rights. Also of relevance for the
balancing of competing interests which the Court must carry out is the fact that under
article 6(2) of the Convention the seal hunters had a right to be presumed innocent of
any criminal offence until proved guilty. By reason of the duties and responsibilities'
inherent in the exercise of the freedom of expression, the safeguard afforded by article
10 to journalists in relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith to provide accurate and reliable information
in accordance with the ethics of journalism."
111. Section 12(4) of the Human Rights Act 1998 provides:
"The court must have particular regard to the importance of the Convention right to
freedom of expression and, where the proceedings relate to material which the
respondent claims, or which appears to the court, to be journalistic, literary or artistic
material (or to conduct connected with such material), to (a)
the extent to which (i)
the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the pubic interest for the material to be published;
(b) any relevant privacy code."
But, as Sedley LJ said in Douglas v Hello! Ltd [2001] QB 967, 1003, para 133, you cannot
have particular regard to article 10 without having equally particular regard at the very least to
article 8: see also In re S (A Child) (Identifications: Restrictions on Publication) [2003] 3
WLR 1425, 1450, para 52 where Hale LJ said that section 12(4) does not give either article
pre-eminence over the other. These observations seem to me to be entirely consistent with the
jurisprudence of the European Court, as is the following passage in Sedley LJ's opinion in
Douglas at p 1005, para 137:
"The case being one which affects the Convention right of freedom of expression,
section 12 of the Human Rights Act 1998 requires the court to have regard to article
10 (as, in its absence, would section 6). This, however, cannot, consistently with
section 3 and article 17, give the article 10(1) right of free expression a presumptive
priority over other rights. What it does is require the court to consider article 10(2)
along with article 10(1), and by doing so to bring into the frame the conflicting right to
respect for privacy. This right, contained in article 8 and reflected in English law, is in
turn qualified in both contexts by the right of others to free expression. The outcome,
which self-evidently has to be the same under both articles, is determined principally
by considerations of proportionality."
It is to be noted too that clause 3(i) of the Code of Practice of the Press Complaints
Committee acknowledges this limitation. It states that a person may have a reasonable
expectation of privacy in a public place.
Striking the balance
112. There is no doubt that the presentation of the material that it was legitimate to convey
to the public in this case without breaching the duty of confidence was a matter for the
journalists. The choice of language used to convey information and ideas, and decisions as to
whether or not to accompany the printed word by the use of photographs, are pre-eminently
editorial matters with which the court will not interfere. The respondents are also entitled to
claim that they should be accorded a reasonable margin of appreciation in taking decisions as
to what details needed to be included in the article to give it credibility. This is an essential
part of the journalistic exercise.
113. But decisions about the publication of material that is private to the individual raise
issues that are not simply about presentation and editing. Any interference with the public
interest in disclosure has to be balanced against the interference with the right of the
individual to respect for their private life. The decisions that are then taken are open to review
by the court. The tests which the court must apply are the familiar ones. They are whether
publication of the material pursues a legitimate aim and whether the benefits that will be
achieved by its publication are proportionate to the harm that may be done by the interference
with the right to privacy. The jurisprudence of the European Court of Human Rights explains
how these principles are to be understood and applied in the context of the facts of each case.
Any restriction of the right to freedom of expression must be subjected to very close scrutiny.
But so too must any restriction of the right to respect for private life. Neither article 8 nor
article 10 has any pre-eminence over the other in the conduct of this exercise. As Resolution
1165 of the Parliamentary Assembly of the Council of Europe (1998), para 11, pointed out,
they are neither absolute not in any hierarchical order, since they are of equal value in a
democratic society.
The article 10 right
114. In the present case it is convenient to begin by looking at the matter from the
standpoint of the respondents' assertion of the article 10 right and the court's duty as a public
authority under section 6(1) of the Human Rights Act 1998, which section 12(4) reinforces,
not to act in a way which is incompatible with that Convention right.
115. The first question is whether the objective of the restriction on the article 10 right the
protection of Miss Campbell's right under article 8 to respect for her private life - is
sufficiently important to justify limiting the fundamental right to freedom of expression which
the press assert on behalf of the public. It follows from my conclusion that the details of Miss
Campbell's treatment were private that I would answer this question in the affirmative. The
second question is whether the means chosen to limit the article 10 right are rational, fair and
not arbitrary and impair the right as minimally as is reasonably possible. It is not enough to
assert that it would be reasonable to exclude these details from the article. A close
examination of the factual justification for the restriction on the freedom of expression is
needed if the fundamental right enshrined in article 10 is to remain practical and effective.
The restrictions which the court imposes on the article 10 right must be rational, fair and not
arbitrary, and they must impair the right no more than is necessary.
116. In my opinion the factors that need to be weighed are, on the one hand, the duty that
was recognised in Jersild v Denmark (1994) 19 EHRR 1, para 31 to impart information and
ideas of public interest which the public has a right to receive, and the need that was
recognised in Fressoz v France (2001) 31 EHRR 28, para 54 for the court to leave it to
journalists to decide what material needs to be reproduced to ensure credibility; and, on the
other hand, the degree of privacy to which Miss Campbell was entitled under the law of
confidence as to the details of her therapy. Account should therefore be taken of the
respondents' wish to put forward a story that was credible and to present Miss Campbell in a
way that commended her for her efforts to overcome her addiction.
117. But it should also be recognised that the right of the public to receive information
about the details of her treatment was of a much lower order than the undoubted right to know
that she was misleading the public when she said that she did not take drugs. In Dudgeon v
United Kingdom (1981) 4 EHRR 149, para 52 the European Court said that the more intimate
the aspects of private life which are being interfered with, the more serious must be the
reasons for doing so before the interference can be legitimate. Clayton and Tomlinson, The
Law of Human Rights (2000), para 15.162, point out that the court has distinguished three
kinds of expression: political expression, artistic expression and commercial expression, and
that it consistently attaches great importance to political expression and applies rather less
rigorous principles to expression which is artistic and commercial. According to the court's
well-established case law, freedom of expression constitutes one of the essential foundations
of a democratic society and one of the basic conditions for its progress and the self-fulfilment
of each individual: Tammer v Estonia (2001) 37 EHRR 857, para 59. But there were no
political or democratic values at stake here, nor has any pressing social need been identified:
contrast Goodwin v United Kingdom (1996) 22 EHRR 123, para 40.
118. As for the other side of the balance, Keene LJ said in Douglas v Hello! Ltd [2001] QB
967, para 168, that any consideration of article 8 rights must reflect the fact that there are
different degrees of privacy. In the present context the potential for disclosure of the
information to cause harm is an important factor to be taken into account in the assessment of
the extent of the restriction that was needed to protect Miss Campbell's right to privacy.
The article 8 right
119. Looking at the matter from Miss Campbell's point of view and the protection of her
article 8 Convention right, publication of details of the treatment which she was undertaking
to cure her addiction - that she was attending Narcotics Anonymous, for how long, how
frequently and at what times of day she had been attending this therapy, the nature of it and
extent of her commitment to the process and the publication of the covertly taken photographs
(the third, fourth and fifth of the five elements contained in the article) - had the potential to
cause harm to her, for the reasons which I have already given. So I would attach a good deal
of weight to this factor.
120. As for the other side of the balance, a person's right to privacy may be limited by the
public's interest in knowing about certain traits of her personality and certain aspects of her
private life, as L'Heureux-Dubé and Bastarache JJ in the Supreme Court of Canada recognised
in Aubry v Les ?ditions Vice-Versa Inc [1998] 1 SCR 591, paras 57-58. But it is not enough to
deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is
newsworthy. A margin of appreciation must, of course, be given to the journalist. Weight
must be given to this. But to treat these details merely as background was to undervalue the
importance that was to be attached to the need, if Miss Campbell was to be protected, to keep
these details private. And it is hard to see that there was any compelling need for the public to
know the name of the organisation that she was attending for the therapy, or for the other
details of it to be set out. The presentation of the article indicates that this was not fully
appreciated when the decision was taken to publish these details. The decision to publish the
photographs suggests that greater weight was being given to the wish to publish a story that
would attract interest rather than to the wish to maintain its credibility.
121. Had it not been for the publication of the photographs, and looking to the text only, I
would have been inclined to regard the balance between these rights as about even. Such is
the effect of the margin of appreciation that must, in a doubtful case, be given to the
journalist. In that situation the proper conclusion to draw would have been that it had not been
shown that the restriction on the article 10 right for which Miss Campbell argues was justified
on grounds of proportionality. But the text cannot be separated from the photographs. The
words "Therapy: Naomi outside meeting" underneath the photograph on the front page and
the words "Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group
meeting this week" underneath the photograph on page 13 were designed to link that what
might otherwise have been anonymous and uninformative pictures with the main text. The
reader would undoubtedly make that link, and so too would the reasonable person of ordinary
sensibilities. The reasonable person of ordinary sensibilities would also regard publication of
the covertly taken photographs, and the fact that they were linked with the text in this way, as
adding greatly overall to the intrusion which the article as a whole made into her private life.
122. The photographs were taken of Miss Campbell while she was in a public place, as she
was in the street outside the premises where she had been receiving therapy. The taking of
photographs in a public street must, as Randerson J said in Hosking v Runting [2003] 3 NZLR
385, 415, para 138, be taken to be one of the ordinary incidents of living in a free community.
The real issue is whether publicising the content of the photographs would be offensive: Gault
and Blanchard JJ in the Court of Appeal (25 March 2004), para 165. A person who just
happens to be in the street when the photograph was taken and appears in it only incidentally
cannot as a general rule object to the publication of the photograph, for the reasons given by
L'Heureux-Dubé and Bastarache JJ in Aubry v ?ditions Vice-Versa Inc [1998] 1 SCR 591,
para 59. But the situation is different if the public nature of the place where a photograph is
taken was simply used as background for one or more persons who constitute the true subject
of the photograph. The question then arises, balancing the rights at issue, where the public's
right to information can justify dissemination of a photograph taken without authorisation:
Aubry, para 61. The European Court has recognised that a person who walks down a public
street will inevitably be visible to any member of the public who is also present and, in the
same way, to a security guard viewing the scene through closed circuit television: PG v JH v
United Kingdom, App No. 44787/98, para 57. But, as the court pointed out in the same
paragraph, private life considerations may arise once any systematic or permanent record
comes into existence of such material from the public domain. In Peck v United Kingdom
[2003] 36 EHRR 719, para 62 the court held that the release and publication of CCTV forage
which showed the applicant in the process of attempting to commit suicide resulted in the
moment being viewed to an extent that far exceeded any exposure to a passer-by or to security
observation that he could have foreseen when he was in that street.
123. The same process of reasoning that led to the findings in Peck that the article 8 right
had been violated and by the majority in Aubry that there had been an infringement of the
claimant's right to respect for her private life can be applied here. Miss Campbell could not
have complained if the photographs had been taken to show the scene in the street by a
passer-by and later published simply as street scenes. But these were not just pictures of a
street scene where she happened to be when the photographs were taken. They were taken
deliberately, in secret and with a view to their publication in conjunction with the article. The
zoom lens was directed at the doorway of the place where the meeting had been taking place.
The faces of others in the doorway were pixilated so as not to reveal their identity. Hers was
not, the photographs were published and her privacy was invaded. The argument that the
publication of the photograph added credibility to the story has little weight. The photograph
was not self-explanatory. Neither the place nor the person were instantly recognisable. The
reader only had the editor's word as to the truth of these details.
124. Any person in Miss Campbell's position, assuming her to be of ordinary sensibilities
but assuming also that she had been photographed surreptitiously outside the place where she
been receiving therapy for drug addiction, would have known what they were and would have
been distressed on seeing the photographs. She would have seen their publication, in
conjunction with the article which revealed what she had been doing when she was
photographed and other details about her engagement in the therapy, as a gross interference
with her right to respect for her private life. In my opinion this additional element in the
publication is more than enough to outweigh the right to freedom of expression which the
defendants are asserting in this case.
Conclusion
125. Despite the weight that must be given to the right to freedom of expression that 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 that cannot be justified. In my opinion publication of the
third, fourth and fifth elements in the article (see para 88) was an invasion of that right for
which she is entitled to damages. I would allow the appeal and restore the orders that were
made by the trial judge.
THE BARONESS HALE OF RICHMOND
My Lords,
126. This case raises some big questions. How is the balance to be struck between
everyone's right to respect for their private and family life under Article 8 of the European
Convention on Human Rights and everyone's right to freedom of expression, including the
freedom to receive and impart information and ideas under Article 10? How do those rights
come into play in a dispute between two private persons? But the parties are largely agreed
about the answers to these. They disagree about where that balance is to be struck in the
individual case. In particular, how far is a newspaper able to go in publishing what would
otherwise be confidential information about a celebrity in order to set the record straight? And
does it matter that the article was illustrated by a covertly taken photograph?
The facts
127. Even the judges know who Naomi Campbell is. On 1 February 2001, the Daily
Mirror published a front-page article under the headline 'Naomi: I am a drug addict'. This did
not refer to any public confession she had made. The Mirror had discovered that she was
attending meetings of Narcotics Anonymous. It knew enough about those meetings to
construct an article based on what would have gone on there. It had also discovered that this
had been going on for some time and that on the day in question she had been to two meetings
at different places in London. The front-page article had a small picture of her emerging from
the first meeting. The fuller article spread across pages 12 and 13 had a larger picture of her
and others outside a building with a prominent café signboard in the foreground. The others'
faces were pixillated. The article gave a full account of her history of difficult behaviour but
was sympathetic to her attempts to 'beat the demons that have been haunting her.' It quoted
anonymous friends of hers, and acknowledged both the seriousness of her commitment to
therapy and the fragility of her state of recovery.
128. The original source of the story was either a fellow sufferer attending NA meetings or
a member of Miss Campbell's staff or entourage. The Mirror had sent along a photographer in
the hope of catching her outside the meeting. This done, the editor rang her agent the evening
before publication. He pretended that the photographer had happened to be in the street when
he saw Miss Campbell coming out of a shop and followed her to the meeting. The agent told
the editor that she had 'no comment' but that NA was a 'medical thing' and that it would be
'morally wrong' to publish it.
129. At trial and ever since, however, it has been accepted that the Mirror was entitled to
publish the fact that Miss Campbell was a drug addict and was having therapy. She had
publicly denied any involvement with illegal drugs, in particular in a television interview after
an admission to a clinic in America in 1997, and the paper was entitled to put the record
straight. It was also entitled, even obliged, to balance that disclosure with the fact that she was
addressing the problem by having therapy. But, it was argued, the paper was not entitled to
disclose that she was attending meetings of Narcotics Anonymous, or that she had been doing
so for some time and with some frequency. Nor was it entitled to illustrate the story with
covert photography of Miss Campbell in the company of other participants in the meeting.
130. Proceedings for breach of confidence and infringement of privacy were issued that
same day. At trial only the former was pursued (along with a claim under the Data Protection
Act 1998 which it is agreed adds nothing to the claim for breach of confidence). The judge
held that the information 'giving details that [her treatment] was by regular attendance at NA
meetings' clearly bore the badge of confidentiality. The details were obtained surreptitiously,
assisted by covert photography when Miss Campbell was engaged, deliberately 'low key and
drably dressed', in the private activity of therapy to advance her recovery from drug addiction.
Given the source, they must have been imparted in circumstances importing an obligation of
confidence. Publication was to her detriment. It was, viewed objectively, likely to affect
adversely her attendance and participation in therapy meetings. Although the disclosure of her
addiction and previous lying denial caused her 'considerable' distress, publication of the
details about her sessions with NA caused her 'significant' distress. Article 8 was thus engaged
and striking the balance with Article 10 she was entitled to a remedy.
131. The Court of Appeal reversed this decision. Given what it was accepted could be
disclosed, the 'peripheral details' about her attendance at NA were part of the 'journalistic
package' adding colour and credibility to the story without increasing the breach of
confidence. As complaint could not be made about the taking of the photographs, their
publication added nothing.
The basic principles
132. Neither party to this appeal has challenged the basic principles which have emerged
from the Court of Appeal in the wake of the Human Rights Act 1998. The 1998 Act does not
create any new cause of action between private persons. But if there is a relevant cause of
action applicable, the court as a public authority must act compatibly with both parties'
Convention rights. In a case such as this, the relevant vehicle will usually be the action for
breach of confidence, as Lord Woolf CJ held in A v B plc [2002] EWCA Civ 337, [2003] QB
195, 202, para 4:
"[Articles 8 and 10] have provided new parameters within which the court will decide,
in an action for breach of confidence, whether a person is entitled to have his privacy
protected by the court or whether the restriction of freedom of expression which such
protection involves cannot be justified. The court's approach to the issues which the
applications raise has been modified because, under section 6 of the 1998 Act, the
court, as a public authority, is required not to 'act in a way which is incompatible with
a Convention right'. The court is able to achieve this by absorbing the rights which
articles 8 and 10 protect into the long-established action for breach of confidence. This
involves giving a new strength and breadth to the action so that it accommodates the
requirements of these articles."
133. The action for breach of confidence is not the only relevant cause of action: the
inherent jurisdiction of the High Court to protect the children for whom it is responsible is
another example: see In re S (a child) (identification: restrictions on publication) [2003]
EWCA Civ 963[2003] 3 WLR 1425. But the courts will not invent a new cause of action to
cover types of activity which were not previously covered: see Wainwright v Home Office
[2003] 3 WLR 1137. Mrs Wainwright and her disabled son suffered a gross invasion of their
privacy when they were strip-searched before visiting another son in prison. The common law
in this country is powerless to protect them. As they suffered at the hands of a public
authority, the Human Rights Act would have given them a remedy if it had been in force at
the time, but it was not. That case indicates that our law cannot, even if it wanted to, develop a
general tort of invasion of privacy. But where existing remedies are available, the court not
only can but must balance the competing Convention rights of the parties.
134. This begs the question of how far the Convention balancing exercise is premissed on
the scope of the existing cause of action. Clearly outside its scope is the sort of intrusion into
what ought to be private which took place in Wainwright. Inside its scope is what has been
termed the protection of the individual's informational autonomy' by prohibiting the
publication of confidential information. How does the scope of the action for breach of
confidence accommodate the Article 8 rights of individuals? As Randerson J summed it up in
Hosking v Runting [2003] 3 NZLR 385, 403, para 83 at p 403:
"[The English Courts] have chosen to develop the claim for breach of confidence on a
case by case basis. In doing so, it has been recognised that no pre-existing relationship
is required in order to establish a cause of action and that an obligation of confidence
may arise from the nature of the material or may be inferred from the circumstances in
which it has been obtained."
The position we have reached is that the exercise of balancing article 8 and article 10 may
begin when the person publishing the information knows or ought to know that there is a
reasonable expectation that the information in question will be kept confidential. That is the
way in which Lord Woolf CJ put it in A v B plc, at paras 11(ix) and (x) (in which he also
referred to the approach of Dame Elizabeth Butler-Sloss P in Venables v News Group
Newspapers Ltd [2001] Fam 430). It is, as I understand it, also the way in which it is put by
my noble and learned friends, Lord Nicholls of Birkenhead (at paragraph 21) and Lord Hope
of Craighead (at paragraph 84) in this case.
135. An objective reasonable expectation test is much simpler and clearer than the test
sometimes quoted from the judgment of Gleeson CJ in the High Court of Australia in
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13,
para 42, that 'disclosure or observation would be highly offensive to a reasonable person of
ordinary sensibilities'. It is important to set those words in their full context, bearing in mind
that there is no constitutional protection of privacy in Australia:
"There is no bright line which can be drawn between what is private and what is not.
Use of the term 'public' is often a convenient method of contrast, but there is a large
area in between what is necessarily public and what is necessarily private. An activity
is not private simply because it is not done in public. It does not suffice to make an act
private that, because it occurs on private property, it has such measure of protection
from the public gaze as the characteristics of the property, the nature of the activity,
the locality and the disposition of the property owner combine to afford. Certain kinds
of information about a person, such as information relating to health, personal
relationships or finances, may be easy to identify as private; as may certain kinds of
activity, which a reasonable person, applying contemporary standards of morals and
behaviour would understand to be meant to be unobserved. The requirement that
disclosure or observation of information or conduct would be highly offensive to a
reasonable person of ordinary sensibilities is in many circumstances a useful practical
test of what is private."
136. It is apparent, therefore, that the Chief Justice did not intend those last words to be the
only test, particularly in respect of information which is obviously private, including
information about health, personal relationships or finance. It is also apparent that he was
referring to the sensibilities of a reasonable person placed in the situation of the subject of the
disclosure rather than to its recipient.
137. It should be emphasised that the 'reasonable expectation of privacy' is a threshold test
which brings the balancing exercise into play. It is not the end of the story. Once the
information is identified as 'private' in this way, the court must balance the claimant's interest
in keeping the information private against the countervailing interest of the recipient in
publishing it. Very often, it can be expected that the countervailing rights of the recipient will
prevail.
138. The parties agree that neither right takes precedence over the other. This is consistent
with Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe, para
10:
"The Assembly reaffirms the importance of everyone's right to privacy, and of the
right to freedom of expression, as fundamental to a democratic society. These rights
are neither absolute nor in any hierarchical order, since they are of equal value."
139. Each right has the same structure. Article 8(1) states that "everyone has the right to
respect for his private and family life, his home and his correspondence". Article 10(1) states
that "Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authorities and regardless of frontiers. . . . " Unlike the article 8 right, however, it is accepted
in article 10(2) that the exercise of this right 'carries with it duties and responsibilities.' Both
rights are qualified. They may respectively be interfered with or restricted provided that three
conditions are fulfilled:
(a) The interference or restriction must be 'in accordance with the law'; it must have a
basis in national law which conforms to the Convention standards of legality.
(b) It must pursue one of the legitimate aims set out in each article. Article 8(2)
provides for "the protection of the rights and freedoms of others". Article 10(2)
provides for "the protection of the reputation or rights of others" and for "preventing
the disclosure of information received in confidence". The rights referred to may
either be rights protected under the national law or, as in this case, other Convention
rights.
(c) Above all, the interference or restriction must be "necessary in a democratic
society"; it must meet a "pressing social need" and be no greater than is proportionate
to the legitimate aim pursued; the reasons given for it must be both "relevant" and
"sufficient" for this purpose.
140. The application of the proportionality test is more straightforward when only one
Convention right is in play: the question then is whether the private right claimed offers
sufficient justification for the degree of interference with the fundamental right. It is much
less straightforward when two Convention rights are in play, and the proportionality of
interfering with one has to be balanced against the proportionality of restricting the other. As
each is a fundamental right, there is evidently a "pressing social need" to protect it. The
Convention jurisprudence offers us little help with this. The European Court of Human Rights
has been concerned with whether the state's interference with privacy (as, for example, in Z v
Finland (1997) 25 EHRR 371) or a restriction on freedom of expression (as, for example, in
Jersild v Denmark (1994) 19 EHRR 1, Fressoz and Roire v France (2001) 31 EHRR 2, and
Tammer v Estonia (2001) 37 EHRR 857) could be justified in the particular case. In the
national court, the problem of balancing two rights of equal importance arises most acutely in
the context of disputes between private persons.
141. Both parties accepted the basic approach of the Court of Appeal in In re S [2003] 3
WLR 1425, 1451-1452, at paras 54 to 60. This involves looking first at the comparative
importance of the actual rights being claimed in the individual case; then at the justifications
for interfering with or restricting each of those rights; and applying the proportionality test to
each. The parties in this case differed about whether the trial judge or the Court of Appeal had
done this, the appellant arguing that the Court of Appeal had assumed primacy for the Article
10 right while the respondent argued that the trial judge had assumed primacy for the Article
8 right.
Striking the balance
142. The considerations on each side in In re S were of an altogether more serious order
than those in this case. On the one hand was respect for the private and family life of a little
boy who had had his whole world turned upside down by the death of his older brother
allegedly at the hands of his mother. He faced having to live and go to school with daily
publicity about the most intimate details of his family life over the several months while his
mother was being tried for his brother's murder. That publicity would include the names and
photographs of both his mother and his brother from which he could readily be identified.
There was psychiatric evidence of the harm which he was likely to suffer as a result. This
would include not only the further increase in the already much heightened risk of mental
illness in adulthood but also the harm to his relationship with his mother, which on any view
was important to his continuing health and development. On the other hand was the public
interest in the free reporting of murder trials. This is not only important in itself, as a
manifestation both of freedom of expression and of freedom to receive information. It is also
an essential component in a fair trial (albeit one which this accused was more than willing to
relinquish for the sake of her surviving son) and in securing that justice is done in the open
and not in secret, so that the public can have confidence in the system both in general and in
the particular case. In In re S it was also possible to consider how the interference with each
right might be minimised by tailoring the restrictions to meet the case: it was not an 'all or
nothing' question.
143. No one can pretend that the interests at stake on either side of this case are anywhere
near as serious as the interests involved in Re S. Some might even regard them as trivial. Put
crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in
their time has profited from the other. Both are assumed to be grown-ups who know the score.
On the one hand is the interest of a woman who wants to give up her dependence on illegal
and harmful drugs and wants the peace and space in which to pursue the help which she finds
useful. On the other hand is a newspaper which wants to keep its readers informed of the
activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies.
This sort of story, especially if it has photographs attached, is just the sort of thing that fills,
sells and enhances the reputation of the newspaper which gets it first. One reason why press
freedom is so important is that we need newspapers to sell in order to ensure that we still have
newspapers at all. It may be said that newspapers should be allowed considerable latitude in
their intrusions into private grief so that they can maintain circulation and the rest of us can
then continue to enjoy the variety of newspapers and other mass media which are available in
this country. It may also be said that newspaper editors often have to make their decisions at
great speed and in difficult circumstances, so that to expect too minute an analysis of the
position is in itself a restriction on their freedom of expression.
144. Examined more closely, however, this case is far from trivial. What is the nature of
the private life, respect for which is in issue here? The information revealed by the article was
information relating to Miss Campbell's health, both physical and mental. Drug abuse can be
seriously damaging to physical health; indeed it is sometimes life-threatening. It can also lead
to a wide variety of recognised mental disorders (see The ICD-10 Classification of Mental
and Behavioural Disorders, WHO 1992, F10 - F 19). Drug addiction needs treatment if it is to
be overcome. Treatment is at several levels. There is the quick 'detox' to rid the body of the
harmful substances. This will remove the immediate physical danger but does nothing to
tackle the underlying dependence. Then there is therapy aimed at tackling that underlying
dependence, which may be combined with a transfer of the dependence from illegal drugs to
legally prescribed substitutes. Then there is therapy aimed at maintaining and reinforcing the
resolve to keep up the abstinence achieved and prevent relapse. This is vital. Anyone who has
had anything to do with drug addiction knows how easy it is to relapse once returned to the
temptations of the life in which it began and how necessary it is to try, try and try again to
achieve success.
145. It has always been accepted that information about a person's health and treatment for
ill-health is both private and confidential. This stems not only from the confidentiality of the
doctor-patient relationship but from the nature of the information itself. As the European
Court of Human Rights put it in Z v Finland (1997) 25 EHRR 371, 405, para 95:
"Respecting the confidentiality of health data is a vital principle in the legal systems of
all the Contracting Parties to the Convention. It is crucial not only to respect the sense
of privacy of a patient but also to preserve his or her confidence in the medical
profession and in the health services in general. Without such protection, those in need
of medical assistance may be deterred from revealing such information of a personal
and intimate nature as may be necessary in order to receive appropriate treatment and,
even, from seeking such assistance, thereby endangering their own health and, in the
case of transmissible diseases, that of the community."
146. The Court of Appeal in this case held that the information revealed here was not in
the same category as clinical medical records. That may be so, in the sense that it was not the
notes made by a doctor when consulted by a patient. But the information was of exactly the
same kind as that which would be recorded by a doctor on those notes: the presenting problem
was addiction to illegal drugs, the diagnosis was no doubt the same, and the prescription was
therapy, including the self-help group therapy offered by regular attendance at Narcotics
Anonymous.
147. I start, therefore, from the fact - indeed, it is common ground - that all of the
information about Miss Campbell's addiction and attendance at NA which was revealed in the
Daily Mirror article was both private and confidential, because it related to an important
aspect of Miss Campbell's physical and mental health and the treatment she was receiving for
it. It had also been received from an insider in breach of confidence. That simple fact has been
obscured by the concession properly made on her behalf that the newspaper's countervailing
freedom of expression did serve to justify the publication of some of this information. But the
starting point must be that it was all private and its publication required specific justification.
148. What was the nature of the freedom of expression which was being asserted on the
other side? There are undoubtedly different types of speech, just as there are different types of
private information, some of which are more deserving of protection in a democratic society
than others. Top of the list is political speech. The free exchange of information and ideas on
matters relevant to the organisation of the economic, social and political life of the country is
crucial to any democracy. Without this, it can scarcely be called a democracy at all. This
includes revealing information about public figures, especially those in elective office, which
would otherwise be private but is relevant to their participation in public life. Intellectual and
educational speech and expression are also important in a democracy, not least because they
enable the development of individuals' potential to play a full part in society and in our
democratic life. Artistic speech and expression is important for similar reasons, in fostering
both individual originality and creativity and the free-thinking and dynamic society we so
much value. No doubt there are other kinds of speech and expression for which similar claims
can be made.
149. But it is difficult to make such claims on behalf of the publication with which we are
concerned here. The political and social life of the community, and the intellectual, artistic or
personal development of individuals, are not obviously assisted by pouring over the intimate
details of a fashion model's private life. However, there is one way in which the article could
be said to be educational. The editor had considered running a highly critical piece, adding the
new information to the not inconsiderable list of Miss Campbell's faults and follies detailed in
the article, emphasising the lies and hypocrisy it revealed. Instead he chose to run a
sympathetic piece, still listing her faults and follies, but setting them in the context of her
now-revealed addiction and her even more important efforts to overcome it. Newspaper and
magazines often carry such pieces and they may well have a beneficial educational effect.
150. The crucial difference here is that such pieces are normally run with the co-operation
of those involved. Private people are not identified without their consent. It is taken for
granted that this is otherwise confidential information. The editor did offer Miss Campbell the
opportunity of being involved with the story but this was refused. Her evidence suggests that
she was concerned for the other people in the group. What entitled him to reveal this private
information about her without her consent?
151. The answer which she herself accepts is that she had presented herself to the public as
someone who was not involved in drugs. It would have been a very good thing if she were
not. If other young women do see her as someone to be admired and emulated, then it is all to
the good if she is not addicted to narcotic substances. It might be questioned why, if a role
model has adopted a stance which all would agree is beneficial rather than detrimental to
society, it is so important to reveal that she has feet of clay. But the possession and use of
illegal drugs is a criminal offence and a matter of serious public concern. The press must be
free to expose the truth and put the record straight.
152. That consideration justified the publication of the fact that, contrary to her previous
statements, Miss Campbell had been involved with illegal drugs. It also justified publication
of the fact that she was trying to do something about it by seeking treatment. It was not
necessary for those purposes to publish any further information, especially if this might
jeopardise the continued success of that treatment.
153. The further information includes the fact that she was attending Narcotics
Anonymous meetings, the fact that she had been doing so for some time, and with some
regularity, and the photographs of her either arriving at or leaving the premises where
meetings took place. All of these things are inter-related with one another and with the effect
which revealing them might have upon her. Revealing that she was attending Narcotics
Anonymous enabled the paper to print the headline 'Naomi: I am a drug addict', not because
she had said so to the paper but because it could assume that she had said this or something
like it in a meeting. It also enabled the paper to talk about the meetings and how she was
treated there, in a way which made it look as if the information came from someone who had
been there with her, even if it simply came from general knowledge of how these meetings
work. This all contributed to the sense of betrayal by someone close to her of which she spoke
and which destroyed the value of Narcotics Anonymous as a safe haven for her.
154. Publishing the photographs contributed both to the revelation and to the harm that it
might do. By themselves, they are not objectionable. Unlike France and Quebec, in this
country we do not recognise a right to one's own image: cf Aubry v Editions Vice-Versa Inc
[1998] 1 SCR 591. We have not so far held that the mere fact of covert photography is
sufficient to make the information contained in the photograph confidential. The activity
photographed must be private. If this had been, and had been presented as, a picture of Naomi
Campbell going about her business in a public street, there could have been no complaint. She
makes a substantial part of her living out of being photographed looking stunning in designer
clothing. Readers will obviously be interested to see how she looks if and when she pops out
to the shops for a bottle of milk. There is nothing essentially private about that information
nor can it be expected to damage her private life. It may not be a high order of freedom of
speech but there is nothing to justify interfering with it. (This was the view of Randerson J in
Hosking v Runting [2003] 3 NZLR 385, which concerned a similarly innocuous outing; see
now the decision of the Court of Appeal, 25 March 2004.)
155. But here the accompanying text made it plain that these photographs were different.
They showed her coming either to or from the NA meeting. They showed her in the company
of others, some of whom were undoubtedly part of the group. They showed the place where
the meeting was taking place, which will have been entirely recognisable to anyone who knew
the locality. A picture is 'worth a thousand words' because it adds to the impact of what the
words convey; but it also adds to the information given in those words. If nothing else, it tells
the reader what everyone looked like; in this case it also told the reader what the place looked
like. In context, it also added to the potential harm, by making her think that she was being
followed or betrayed, and deterring her from going back to the same place again.
156. There was no need to do this. The editor accepted that even without the photographs,
it would have been a front page story. He had his basic information and he had his quotes.
There is no shortage of photographs with which to illustrate and brighten up a story about
Naomi Campbell. No doubt some of those available are less flattering than others, so that if he
had wanted to run a hostile piece he could have done so. The fact that it was a sympathetic
story is neither here nor there. The way in which he chose to present the information he was
entitled to reveal was entirely a matter for him. The photographs would have been useful in
proving the truth of the story had this been challenged, but there was no need to publish them
for this purpose. The credibility of the story with the public would stand or fall with the
credibility of Daily Mirror stories generally.
157. The weight to be attached to these various considerations is a matter of fact and
degree. Not every statement about a person's health will carry the badge of confidentiality or
risk doing harm to that person's physical or moral integrity. The privacy interest in the fact
that a public figure has a cold or a broken leg is unlikely to be strong enough to justify
restricting the press's freedom to report it. What harm could it possibly do? Sometimes there
will be other justifications for publishing, especially where the information is relevant to the
capacity of a public figure to do the job. But that is not this case and in this case there was, as
the judge found, a risk that publication would do harm. The risk of harm is what matters at
this stage, rather than the proof that actual harm has occurred. People trying to recover from
drug addiction need considerable dedication and commitment, along with constant
reinforcement from those around them. That is why organisations like Narcotics Anonymous
were set up and why they can do so much good. Blundering in when matters are
acknowledged to be at a 'fragile' stage may do great harm.
158. The trial judge was well placed to assess these matters. He could tell whether the
impact of the story on her was serious or trivial. The fact that the story had been published at
all was bound to cause distress and possibly interfere with her progress. But he was best
placed to judge whether the additional information and the photographs had added
significantly both to the distress and the potential harm. He accepted her evidence that it had
done so. He could also tell how serious an interference with press freedom it would have been
to publish the essential parts of the story without the additional material and how difficult a
decision this would have been for an editor who had been told that it was a medical matter
and that it would be morally wrong to publish it.
159. The judge was also obliged by section 12(4)(b) of the 1998 Act, not only to have
particular regard to the importance of the Convention right to freedom of expression, but also
to any relevant privacy code. The Press Complaints Commission Code of Practice supports
rather than undermines the conclusion he reached:
"3. * Privacy
i) Everyone is entitled to respect for his or her private and family life, home, health
and correspondence. A publication will be expected to justify intrusions into any
individual's private life without consent.
ii) The use of long lens photography to take pictures of people in private places
without their consent is unacceptable.
Note - Private places are public or private property where there is a reasonable
expectation of privacy
The public interest
There may be exceptions to the clauses marked * where they can be demonstrated to
be in the public interest.
1. The public interest includes:
i) Detecting or exposing crime or a serious misdemeanour.
ii) Protecting public health and safety.
iii) Preventing the pubic from being misled by some statement or action of an
individual or organisation. . . . "
This would appear to expect almost exactly the exercise conducted above and to lead to the
same conclusion as the judge.
160. I would therefore allow this appeal and restore the order of the judge.
LORD CARSWELL
My Lords,
161. I have had the advantage of reading in draft the opinions of my noble and learned
friends, Lord Hope of Craighead and Baroness Hale of Richmond, and I agree with them that
the appeal should be allowed.
162. The arguments advanced to your Lordships ranged over a wide spectrum of issues in
the law of breach of confidence, but in the end they seemed to me to come down to fairly
short points and straightforward questions, which involved the application of reasonably well
settled principles.
163. The material in the article the subject of this appeal was divided by counsel into five
categories, set out in paragraph 88 of Lord Hope's opinion, to which I would refer. It was not
in dispute that the information was imparted in confidence to the respondents, but that they
were in the circumstances of the case justified in publishing that contained in the first two
categories, the facts that the appellant was a drug addict and that she was receiving treatment
for her addiction. These facts would ordinarily be regarded as matters of confidential
information. The justification for their publication in this case, however, consists in the fact
that the appellant is a well known figure who courts rather than shuns publicity, described as a
role model for other young women, who had consistently lied about her drug addiction and
compared herself favourably with others in the fashion business who were regular users of
drugs. By these actions she had forfeited the protection to which she would otherwise have
been entitled and made the information about her addiction and treatment a matter of
legitimate public comment on which the Press were entitled to put the record straight. The
contest in this litigation centred round the question whether the respondents were on the same
basis entitled to publish the material comprised in the third, fourth and fifth categories, as the
Court of Appeal held, or whether it fell outside the class of information the subject of
legitimate comment and should be treated as information received in confidence which should
not have been published.
164. The Court of Appeal drew a distinction between the information that the appellant
was receiving therapy from Narcotics Anonymous and details of the treatment of a medical
condition, regarding the latter but not the former as private information. They did not regard it
as more than a "peripheral disclosure" and considered that the publication of the details given
in the "Mirror" about the appellant's attendance at NA meetings was not in its context
sufficiently significant to amount to a breach of duty of confidence owed to her. They held
that a reasonable person of ordinary sensibilities, on reading that the appellant was a drug
addict, would not find it offensive that the "Mirror" newspaper also disclosed that she was
attending meetings of Narcotics Anonymous (paragraph 54 of their judgment). It was
therefore not of sufficient significance to shock the conscience and justify the intervention of
the court (paragraph 56).
165. I am unable to agree with the distinction drawn by the Court of Appeal and for the
reasons given by Lord Hope and Lady Hale I consider that the information was private. It
seems to me that the publication of the details of the appellant's course of treatment at NA and
of the photographs taken surreptitiously in the street of her emerging from a meeting went
significantly beyond the publication of the fact that she was receiving therapy or that she was
engaged in a course of therapy with NA. It revealed where the treatment was taking place and
the text went into the frequency of her treatment. In this way it intruded into what had some of
the characteristics of medical treatment and it tended to deter her from continuing the
treatment which was in her interest and also to inhibit other persons attending the course from
staying with it, when they might be concerned that their participation might become public
knowledge. This in my view went beyond disclosure which was, in the words of the Court of
Appeal, "peripheral to" the publication of the information that the appellant was a drug addict
who was receiving treatment and was capable of constituting breach of confidence. One
cannot disregard the fact that photographs are a powerful prop to a written article and a much
valued part of newspaper reporting, especially in the tabloid or popular press (hence the
enthusiasm of paparazzi to obtain pictures of celebrities for publication in the newspapers). I
think that the Court of Appeal dismissed them too readily as adding little to the reports
already published and that they were not justified in rejecting the judge's conclusions on this.
166. It follows that it is not necessary in this case to ask, in the terms formulated in the
judgment of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty
Ltd (2001) 208 CLR 199 at para 41, whether disclosure of the information would be highly
offensive to a reasonable person of ordinary sensibilities. It is sufficiently established by the
nature of the material that it was private information which attracted the duty of observing the
confidence in which it was imparted to the respondents. It also follows in my opinion that the
motives of the respondents in publishing the information, which they claim to have done in
order to give a sympathetic treatment to the subject, do not constitute a defence, if the
publication of the material in the third, fourth and fifth categories revealed confidential
material.
167. One must then move to the balancing exercise, which involves consideration of
articles 8 and 10 of the European Convention on Human Rights, the process which was
described in some detail by Lord Woolf CJ in paragraph 11 of his judgment in A v B plc
[2003] QB 195, 204-210. The carrying out of the balancing is at the centre of this case and
forms the point at which the two currents of opinion divide. I agree with the analysis
contained in paragraphs 105 to 113 of Lord Hope's opinion in the present appeal and am
gratefully content to adopt it. I also agree with him that in order to justify limiting the article
10 right to freedom of expression the restrictions imposed must be rational, fair and not
arbitrary, and they must impair the right no more than necessary.
168. Resolution of this question depends on the weight which one attributes to several
factors, the extent of the distress to the appellant and the potential adverse effects on her drug
therapy, the extent to which one judges the material in categories 3, 4 and 5 to have gone
beyond that contained in categories 1 and 2, and the degree of latitude which should be
allowed to the press in the way in which it chooses to present a story. Weighing and balancing
these factors is a process which may well lead different people to different conclusions, as one
may readily see from consideration of the judgments of the courts below and the opinions
given by the several members of the Appellate Committee of your Lordships' House.
169. In my opinion it is a delicately balanced decision, and the answer to the questions
which one must ask is by no means self-evident. My own conclusion is the same as that
reached by Lord Hope and Lady Hale. My reasons can be expressed in fairly short compass.
Publication of the details about the appellant's attendance at therapy carried out by Narcotics
Anonymous, highlighted by the photographs printed, constituted in my judgment a
considerable intrusion into her private affairs, which was capable of causing substantial
distress, and on her evidence did cause it to her. It is difficult to assess how much, if any,
actual harm it may have done to her progress in therapy. In her evidence the appellant said
that she had not gone back to the World's End centre of NA since the article was published
and that she had only attended about four meetings in other centres in England, though she
had gone to meetings abroad and met privately at her home with other NA attendees. It seems
to me clear, however, that the publication of the article did create a risk of causing a
significant setback to her recovery. In favour of the respondents it is urged that the material in
categories 3, 4 and 5 differed very little in kind from that in categories 1 and 2, the view
which found favour with the Court of Appeal. My noble and learned friends, Lord Nicholls of
Birkenhead and Lord Hoffmann, also emphasised the importance of allowing a proper degree
of journalistic margin to the press to deal with a legitimate story in its own way, without
imposing unnecessary shackles on its freedom to publish detail and photographs which add
colour and conviction. I do not minimise these factors, which are part of the legitimate
function of a free press and require to be given proper weight.
170. In my opinion the balance comes down in favour of the appellant on the issues in this
appeal. I would not myself attempt to isolate which of the contents of categories 3, 4 and 5 is
more harmful or tips the balance. I find it sufficient to hold that the information contained in
categories 3 and 4, allied to the photographs in category 5, went significantly beyond the
revelation that the appellant was a drug addict and was engaged in drug therapy. I consider
that it constituted such an intrusion into the appellant's private affairs that the factors relied
upon by respondents do not suffice to justify publication. I am unable to accept that such
publication was necessary to maintain the newspaper's credibility.
171. I would accordingly hold that the publication of the third, fourth and fifth elements in
the article constituted an infringement of the appellant's right to privacy that cannot be
justified and that she is entitled to a remedy. I would allow the appeal and restore the judge's
order.