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HOUSE OF LORDS SESSION 2003-
[2004] UKHL 22
on appeal from: [2002] EWCA Civ 1373
OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Campbell (Appellant)
v.
MGN Limited (Respondents)
ON
THURSDAY 6 MAY 2004
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Campbell (Appellant) v. MGN Limited (Respondents)
[2004] UKHL 22
THE LORD NICHOLLS OF BIRKENHEAD
My Lords,
- Naomi Campbell is a celebrated fashion model. Hers is a household name, nationally and internationally. Her face is instantly recognisable. Whatever she does and wherever she goes is news.
- On 1 February 2001 the 'Mirror' newspaper carried as its first story on its front page a prominent article headed 'Naomi: I am a drug addict'. The article was supported on one side by a picture of Miss Campbell as a glamorous model, on the other side by a slightly indistinct picture of a smiling, relaxed Miss Campbell, dressed in baseball cap and jeans, over the caption 'Therapy: Naomi outside meeting'. The article read:
'Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs. The 30-year old has been a regular at counselling sessions for three months, often attending twice a day. Dressed in jeans and baseball cap, she arrived at one of NA's lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovered addicts. Despite her £14million fortune Naomi is treated as just another addict trying to put her life back together. A source close to her said last night: "She wants to clean up her life for good. "She went into modelling when she was very young and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. "But Naomi has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well." Her spokeswoman at Elite Models declined to comment.'
- The story continued inside, with a longer article spread across two pages. The inside article was headed 'Naomi's finally trying to beat the demons that have been haunting her'. The opening paragraphs read:
'She's just another face in the crowd, but the gleaming smile is unmistakeably Naomi Campbell's.
In our picture, the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug.
This is one of the world's most beautiful women facing up to her drink and drugs addiction - and clearly winning.
The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle.
Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling …
To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.'
- Two days later, on 7 February, the 'Mirror' returned to the attack with an offensive and disparaging article. Under the heading 'Fame on you, Ms Campbell', an article referred to her plans 'to launch a campaign for better rights for celebrities or "artists" as she calls them'. The article included the sentence: 'As a campaigner, Naomi's about as effective as a chocolate soldier.'
- In the proceedings Miss Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. The article of 7 February formed the main basis of a claim for aggravated damages. Morland J [2002] EWHC 499 (QB) upheld Miss Campbell's claim. He made her a modest award of £2,500 plus £1,000 aggravated damages in respect of both claims. The newspaper appealed. The Court of Appeal, comprising Lord Phillips of Worth Matravers MR, Chadwick and Keene LJJ, allowed the appeal and discharged the judge's order: [2002] EWCA Civ 1373, [2003] QB 633. Miss Campbell has now appealed to your Lordships' House.
Breach of confidence: misuse of private information
- In this country, unlike the United States of America, there is no over-arching, all-embracing cause of action for 'invasion of privacy': see Wainwright v Home Office [2003] 3 WLR 1137. But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions. The recent decision of the Court of Appeal of New Zealand in Hosking v Runting (25 March 2004) is an example of this. In this country development of the law has been spurred by enactment of the Human Rights Act 1998.
- The present case concerns one aspect of invasion of privacy: wrongful disclosure of private information. The case involves the familiar competition between freedom of expression and respect for an individual's privacy. Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state: see La Forest J in R v Dymont [1988] 2 SCR 417, 426.
- The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence. A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. To attract protection the information had to be of a confidential nature. But the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances 'importing an obligation of confidence' even though no contract of non-disclosure existed: see the classic exposition by Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47-48. The confidence referred to in the phrase 'breach of confidence' was the confidence arising out of a confidential relationship.
- This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognised clearly in the judgment of Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109,
- Now the law imposes a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.
- In the case of individuals this tort, however labelled, affords respect for one aspect of an individual's privacy. That is the value underlying this cause of action. An individual's privacy can be invaded in ways not involving publication of information. Strip-searches are an example. The extent to which the common law as developed thus far in this country protects other forms of invasion of privacy is not a matter arising in the present case. It does not arise because, although pleaded more widely, Miss Campbell's common law claim was throughout presented in court exclusively on the basis of breach of confidence, that is, the wrongful publication by the 'Mirror' of private information.
- The European Convention on Human Rights, and the Strasbourg jurisprudence, have undoubtedly had a significant influence in this area of the common law for some years. The provisions of article 8, concerning respect for private and family life, and article 10, concerning freedom of expression, and the interaction of these two articles, have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present. Where both are present the courts are increasingly explicit in evaluating the competing considerations involved. When identifying and evaluating these factors the courts, including your Lordships' House, have tested the common law against the values encapsulated in these two articles. The development of the common law has been in harmony with these articles of the Convention: see, for instance, Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 203-204.
- The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. As Lord Woolf CJ has said, the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action: A v B plc [2003] QB 195, 202, para 4. Further, it should now be recognised that for this purpose these values are of general application. The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority.
- In reaching this conclusion it is not necessary to pursue the controversial question whether the European Convention itself has this wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of
- I turn to the present case and consider first whether the information whose disclosure is in dispute was private. Mr Caldecott QC placed the information published by the newspaper into five categories: (1) the fact of Miss Campbell's drug addiction; (2) the fact that she was receiving treatment; (3) the fact that she was receiving treatment at Narcotics Anonymous; (4) the details of the treatment - how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment, and the nature of her entrance on the specific occasion; and (5) the visual portrayal of her leaving a specific meeting with other addicts.
- It was common ground between the parties that in the ordinary course the information in all five categories would attract the protection of article 8. But Mr Caldecott recognised that, as he put it, Miss Campbell's 'public lies' precluded her from claiming protection for categories (1) and (2). When talking to the media Miss Campbell went out of her way to say that, unlike many fashion models, she did not take drugs. By repeatedly making these assertions in public Miss Campbell could no longer have a reasonable expectation that this aspect of her life should be private. Public disclosure that, contrary to her assertions, she did in fact take drugs and had a serious drug problem for which she was being treated was not disclosure of private information. As the Court of Appeal noted, where a public figure chooses to present a false image and make untrue pronouncements about his or her life, the press will normally be entitled to put the record straight: [2003] QB 633, 658. Thus the area of dispute at the trial concerned the other three categories of information.
- Of these three categories I shall consider first the information in categories (3) and (4), concerning Miss Campbell's attendance at Narcotics Anonymous meetings. In this regard it is important to note this is a highly unusual case. On any view of the matter, this information related closely to the fact, which admittedly could be published, that Miss Campbell was receiving treatment for drug addiction. Thus when considering whether Miss Campbell had a reasonable expectation of privacy in respect of information relating to her attendance at Narcotics Anonymous meetings the relevant question can be framed along the following lines: Miss Campbell having put her addiction and treatment into the public domain, did the further information relating to her attendance at Narcotics Anonymous meetings retain its character of private information sufficiently to engage the protection afforded by article 8?
- I doubt whether it did. Treatment by attendance at Narcotics Anonymous meetings is a form of therapy for drug addiction which is well known, widely used and much respected. Disclosure that Miss Campbell had opted for this form of treatment was not a disclosure of any more significance than saying that a person who has fractured a limb has his limb in plaster or that a person suffering from cancer is undergoing a course of chemotherapy. Given the extent of the information, otherwise of a highly private character, which admittedly could properly be disclosed, the additional information was of such an unremarkable and consequential nature that to divide the one from the other would be to apply altogether too fine a toothcomb. Human rights are concerned with substance, not with such fine distinctions.
- For the same reason I doubt whether the brief details of how long Miss Campbell had been undergoing treatment, and how often she attended meetings, stand differently. The brief reference to the way she was treated at the meetings did no more
than spell out and apply to Miss Campbell common knowledge of how Narcotics Anonymous meetings are conducted.
- But I would not wish to found my conclusion solely on this point. I prefer to proceed to the next stage and consider how the tension between privacy and freedom of expression should be resolved in this case, on the assumption that the information regarding Miss Campbell's attendance at Narcotics Anonymous meetings retained its private character. At this stage I consider Miss Campbell's claim must fail. I can state my reason very shortly. On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non- publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose.
- It is at this point I respectfully consider Morland J. fell into error. Having held that the details of Miss Campbell's attendance at Narcotics Anonymous had the necessary quality of confidentiality, the judge seems to have put nothing into the scales under article 10 when striking the balance between articles 8 and 10. This was a misdirection. The need to be free to disseminate information regarding Miss Campbell's drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.
- There remains category (5): the photographs taken covertly of Miss Campbell in the road outside the building she was attending for a meeting of Narcotics Anonymous. I say at once that I wholly understand why Miss Campbell felt she was being hounded by the 'Mirror'. I understand also that this could be deeply distressing, even damaging, to a person whose health was still fragile. But this is not the subject of complaint. Miss Campbell, expressly, makes no complaint about the taking of the photographs. She does not assert that the taking of the photographs was itself an invasion of privacy which attracts a legal remedy. The complaint regarding the photographs is of precisely the same character as the nature of the complaints regarding the text of the articles: the information conveyed by the photographs was private information. Thus the fact that the photographs were taken surreptitiously adds nothing to the only complaint being made.
- In general photographs of people contain more information than textual description. That is why they are more vivid. That is why they are worth a thousand words. But the pictorial information in the photographs illustrating the offending article of 1 February 2001 added nothing of an essentially private nature. They showed nothing untoward. They conveyed no private information beyond that discussed in the article. The group photograph showed Miss Campbell in the street exchanging warm greetings with others on the doorstep of a building. There was nothing undignified or distrait about her appearance. The same is true of the smaller picture on the front page. Until spotted by counsel in the course of preparing the case
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.
- 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.
- 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.
- 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.
- 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."
- 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.
- 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.
- 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 ( 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)…"
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
the publication of private personal information in the cases in which the essential part of that information can legitimately be published.
- 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."
- 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."
- 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.
- 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."
- 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.
- 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."
- 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.
- 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.
- 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.
- 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."
- 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
- 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.
- 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.
- 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.
- 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.'"
- 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.
- 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.
- 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.
