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

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    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 Attorney-General 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]

 
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