Campbell v MGN Ltd

The House of Lords considered the tort commonly described as breach of confidence re-characterised as misuse of private information and applied the competing Convention rights in article 8 (respect for private life) and article 10 (freedom of expression). The court held that information about Naomi Campbell's attendance at Narcotics Anonymous meetings and accompanying covert photographs engaged a reasonable expectation of privacy. On a proportionality balance the majority concluded that publication of those particular details and the photographs was not justified by the public interest in correcting her public denials and that the privacy right prevailed in respect of those elements. The court applied the Human Rights Act 1998 framework (notably sections 6 and 12(4)) and confirmed that some margin of editorial judgment must be allowed, but that margin did not extend to the publication in issue.

Background and facts:

• Naomi Campbell, a public figure, was the subject of a Mirror front-page article (1 February 2001) reporting that she was a drug addict attending Narcotics Anonymous (NA) meetings. The paper published text giving details of her attendance and covert photographs taken as she left a meeting.
• Miss Campbell sued for breach of confidence (misuse of private information) and pursued a claim under the Data Protection Act 1998; the latter was accepted to stand or fall with the main claim.

Procedural history:

• At first instance Morland J found in Miss Campbell's favour and awarded damages; the Court of Appeal allowed the publisher's appeal ([2002] EWCA Civ 1373; reported [2003] QB 633), reversing the trial judge. Miss Campbell appealed to the House of Lords.

Nature of the claim and issues:

• The claim alleged unlawful publication of private information (attendance at NA, details of treatment, and covert photographs). The narrow issues were (i) whether the information complained of retained a reasonable expectation of privacy given that Campbell had publicly denied drug use, and (ii) if so, whether publication was justified by freedom of expression and public interest under article 10 and relevant provisions of the Human Rights Act 1998.

Court's reasoning and holdings:

• The House emphasised that the action for breach of confidence has developed into an action protecting the informational aspect of privacy and that the values protected by articles 8 and 10 must inform the common law cause of action (see Attorney-General v Guardian Newspapers (No 2) and A v B plc).
• The court applied an objective "reasonable expectation of privacy" threshold. The majority concluded that the details about attendance at NA and the covert photographs were within the sphere of private information and that a reasonable person in Campbell's position would expect privacy in those particulars.
• On proportionality, although there was a legitimate public interest in correcting her false public denials about drug use, that interest did not justify publication of the attendance details and the covert photographs. The majority held these went beyond what was necessary and caused a real risk of harm to the therapeutic process; publication therefore failed the proportionality test under articles 8 and 10 and HRA section 12(4).
• The majority restored the trial judge's order; two members of the Appellate Committee would have dismissed the appeal, placing more weight on journalistic margin of appreciation. The decision is therefore fact-sensitive and emphasises the need to balance editorial latitude against the vulnerability of the private interest concerned.

Appeal allowed (majority). The majority held that publication of the details of Naomi Campbell's attendance at Narcotics Anonymous meetings and the covert photographs engaged her article 8 right to respect for private life; although the Mirror was entitled to publish that she was an addict and was receiving treatment, the further details and photographs were not justified by article 10 and section 12(4) of the Human Rights Act 1998. The majority restored the trial judge's order for damages. Two Law Lords would have dismissed the appeal, emphasising a wider margin for editorial judgement.

First instance: Morland J, claimant succeeded, award of damages [2002] EWHC 499 (QB). Court of Appeal: allowed the publisher's appeal and discharged the order [2002] EWCA Civ 1373; reported [2003] QB 633. House of Lords: appeal allowed by majority [2004] UKHL 22.