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Judgments - Campbell (Appellant) v. MGN Limited (Respondents)

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    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.

 
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