Campbell (Appellant) v. MGN Limited (Respondents)

Misuse of private information is engaged where the publisher knows or ought to know that the claimant reasonably expects the information to remain private. The stricter question whether disclosure would be highly offensive is neither the sole nor the ordinary threshold.

Once privacy is engaged, neither article 8 nor article 10 has priority. The court must compare the actual rights, examine the justification for interfering with each, and apply proportionality. Public falsehoods may justify correction, but they do not license unnecessary disclosure of confidential treatment details. Editorial latitude cannot justify publishing health-related information and contextual photographs where the added intrusion and risk to treatment outweigh their limited contribution to a legitimate story.

The Daily Mirror disclosed that the appellant, a well-known model who had publicly denied taking drugs, was addicted to drugs and receiving treatment. It also identified Narcotics Anonymous as the treatment provider, described her attendance and published covertly taken photographs of her outside a meeting.

Morland J upheld claims for breach of confidence and under the Data Protection Act 1998, awarding £2,500 damages and £1,000 aggravated damages: [2002] EWHC 499 (QB). The Court of Appeal allowed the publisher's appeal and discharged that order: [2002] EWCA Civ 1373, [2003] QB 633.

The central issue was whether the publisher's legitimate correction of the appellant's false public image also justified the treatment details and photographs under the competing rights to privacy and freedom of expression.

1. Disposition. By a majority of three to two, the House allowed the appeal and restored Morland J's orders. Lord Hope and Baroness Hale held that the publication misused private information. Lord Carswell agreed with both and adopted Lord Hope's proportionality analysis.

2. The applicable cause of action. Baroness Hale explained that the Human Rights Act 1998 did not create a general cause of action between private persons. Existing causes of action, principally breach of confidence in an informational-privacy case, must nevertheless be applied compatibly with articles 8 and 10 of the European Convention on Human Rights. The action protects personal autonomy and the ability to control dissemination of private information.

3. Private information. Lord Hope and Baroness Hale held that information concerning addiction, therapy, the identity of the treatment organisation, the frequency and circumstances of attendance, and the associated photographs was private health information. The operative threshold was whether the claimant reasonably expected privacy. The highly-offensive formulation was only a practical aid in doubtful cases and had to be considered from the position of a reasonable person sharing the claimant's circumstances. Lord Carswell agreed that the details and photographs went materially beyond the bare fact that treatment was being received.

4. Correction of false statements. The appellant's public denials justified disclosure that she was addicted and receiving treatment. Celebrity status alone did not remove her privacy rights, and the justification for correcting the record did not extend automatically to the organisation, frequency, location or circumstances of therapy.

5. Balancing the rights. The majority held that articles 8 and 10 were of equal value. The court had to compare the importance of the rights claimed, examine the justification for restricting each, and apply proportionality. Journalists enjoyed latitude over presentation, but the publication of independently private material remained reviewable. Its public-interest contribution had to justify the resulting intrusion.

6. Application. Lord Hope considered the text alone finely balanced, but held that the photographs materially increased the intrusion. They were deliberately and covertly taken outside the meeting place and linked the appellant to her therapy, its location and other participants. Baroness Hale stressed the risk of distress, betrayal and disruption of treatment. Lord Carswell concluded that the combined details and photographs went significantly beyond the legitimate disclosure and were unnecessary for credibility.

7. Dissent. Lord Nicholls and Lord Hoffmann would have dismissed the appeal. They considered the additional information comparatively anodyne and within the reasonable editorial latitude attaching to a substantially legitimate and sympathetic story.

1. House of Lords: By a majority of three to two, allowed the appeal in Campbell v MGN Limited, reversed the Court of Appeal and restored Morland J's orders: [2004] UKHL 22.
2. Court of Appeal: Allowed MGN Limited's appeal and discharged the trial judge's order: [2002] EWCA Civ 1373, [2003] QB 633.
3. Queen's Bench Division: Morland J upheld the claims for breach of confidence and under the Data Protection Act 1998, awarding £2,500 damages and £1,000 aggravated damages: [2002] EWHC 499 (QB).