| Campbell v Mirror Group Newspapers Ltd | |
|---|---|
| Court | House of Lords |
| Transcript(s) | Full text of judgment |
| Judge(s) sitting | Lord Nicholls, Lord Hoffman, Baroness Hale, Lord Carswell, Lord Hope |
Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 was a House of Lords decision regarding human rights and privacy in English law.
Contents |
Well-known model Naomi Campbell was photographed leaving a rehabilitation clinic, following public denials that she was a recovering drug addict. The photographs were published in a publication run by MGN.
Campbell sought damages under the English law through her lawyers Schillings who engaged Richard Spearman QC to bring a claim for breach of confidence engaging s. 8 of the Human Rights Act, which required the court to operate compatibly with the European Convention on Human Rights. The desired result was a ruling that the English tort action for breach of confidence, subject to the ECHR provisions upholding the right to private and family life, would require the court to recognize the private nature of the information, and hold that there was a breach of her privacy.
Rather than challenge the disclosure of the fact she was a drug addict - which, given her previous denials, may be considered merely a rectification of a lie, she challenged the disclosure of information about the location of her Narcotics Meetings. The photographs, she argued, formed part of this information.
MGN was found liable. MGN appealed.
MGN was not liable; the photographs could be published since, apparently, they were peripheral to the published story and served only to show her in a better light. It was within journalists' margin of appreciation to decide whether such "peripheral" information should be included.
Campbell appealed on the basis, inter alia, that the aforementioned breach of confidence, subject to human rights principles of privacy, had occurred.
Held, 3:2 (Lords Nicholls and Hoffman dissenting), that MGN was liable. Lord Hoffman and Lord Nicholls dissented on the ground that as the Mirror was allowed to publish the fact that she was a drug addict and that she was receiving treatment for her addiction that printing the pictures of her leaving her AA meeting was within the margin of appreciation of the editors as they were allowed to state that she was an addict and receiving treatment for her addiction, while the majority (Hale, Hope, Carswell) believed that the picture added something of 'real significance'.
Lord Nicholls in particular observed that "confidence" was an artificial term for what could more naturally be termed "privacy". He famously coined the term 'misuse of private information'. The result of which is numerous cases following Cambell such as Mckennit v Ash, Mosley v MGN , Murray v Express newspapers, have also had a claim for misuse of private information. This artificiality was a product of English law's lack of a concept of privacy per se.
Approving A v B plc[1], Lord Hope of Craighead noted that a duty of confidence arises wherever the defendant knows, or ought to know, that the claimant can reasonably expect their privacy to be protected. Where there is doubt, the test of what is "highly offensive to a reasonable person"[2] in the plaintiff's position[3] can be used for guidance.
The court engaged in a balancing test. Firstly determining whether the applicant had a reasonable expectation of privacy (thus determining whether Art.8 ECHR was involved), it then asked if the claimant was successful would this result in a significant inference with freedom of expression (balancing Art. 8 with Art. 10). Their Lordships did not give the matter as thorough a treatment as subsequent cases; it was held that Campbell's right to privacy (HRA, Sch 1, Part I, Art 8) outweighed MGN's right to freedom of expression (HRA Art 10).
The majority elucidated upon this balancing of Convention rights, and 'added flesh to the bones' (Hale at [112]) of privacy law by declaring a set of tests which would consider whether a claimant can rely upon the tort of misuse of private information. First, the claimant must successfully show the information to be private, to the level of a 'reasonable expectation of privacy' (per Lady Hale). In an obiter argument, following the jurisprudence of the European Court of Human Rights in Tammer v. Estonia, Lord Hoffman stated that romantic or sexual relationships of the rich and famous should not be covered by the 'cloak of privacy' (at [74]) due to their commonplace in everyday life. Despite a sexual relationship having a 'private' connotation, a celebrity must reasonably expect their love-lives to be known just as well as the parts of their private life they wish to share with the press. It is only in certain circumstances, such as a homosexual relationship, where such an expectation will seldom be 'reasonable'.
Secondly, in balancing the Article 8 right with the Article 10 right, as per Lord Steyn in Re: S, courts must pay heed to Section 12(4) Human Rights Act. This grants the Article 10 right of expression far higher than the Article 8 right of privacy (the only case in Europe which runs contrary to this presumption is Von Hannover v Germany, which can be distinguished due to the private, yet still celebrity status enjoyed by the claimant). As a result of this presumption, the Strasbourg court- and by definition therefore the UK Supreme Court (as it now is) will be given a particularly broad margin of appreciation in terms of what constitutes a 'public interest'. Therefore it is likely, under s.12(4)HRA, the English courts will more often than not find in favour of Article 10, and refuse the injunction or damages.
The final test stated by the Court was in regard to when an injunction, rather than damages, should be issued. Under s.12(3)HRA, the court must be satisfied that the applicant is 'likely to establish' that publication should not be allowed. 'Likely to establish' was previously confirmed in R v Cream Holdings to mean 'more likely than not', and this was confirmed in the present case.
The following cases served to crystallise privacy's inclusion in breach of confidence actions, dubbed a "vehicle" to give effect to the relevant ECHR provisions:
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