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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Naomi Campbell v MGN Ltd. [2002] EWCA Civ 1373 (14 October 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/1373.html Cite as: [2003] QB 633, [2003] 1 All ER 224, [2003] EMLR 2, [2003] HRLR 2, [2002] EWCA Civ 1373, [2003] 2 WLR 80 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Hon Mr Justice Morland
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE CHADWICK
and
LORD JUSTICE KEENE
____________________
NAOMI CAMPBELL | Respondent | |
| - and - | ||
MGN LIMITED | Appellant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Desmond Browne QC, Mr Richard Spearman, QC, and Mr Mark Warby, QC (instructed by Davenport Lyons for the Appellant)
____________________
VERSION
OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Phillips MR:
This is the judgment of the Court.
Campbell
has recovered judgment in two separate actions in which she complains of publication of matters about her private life. The defendants in each action have appealed. The two appeals were conjoined, because they raise a common issue as to the extent to which English law provides protection against the publication by the media of details of the private life of an individual. That issue arises, however, in a
very
different context in each action and we heard the appeals sequentially. We shall adopt the same course in delivering judgment.
Naomi
Campbell
v
Mirror Group Newspapers
Campbell
is an internationally famous fashion model. She has courted, rather than shunned, publicity. In part, this has been to promote other
ventures
in which she is involved, including the marketing of a special brand of perfume and her own range of jeans. In interviews with the media she
volunteered
information about some aspects of her private life and behaviour, including limited details about her relationships with male friends. She acknowledged that she had behavioural problems, which included difficulty in keeping her temper.
Campbell
went out of her way to aver that, in contrast to many models, she did not take drugs, stimulants or tranquillisers. This was untrue; she had, in fact, become addicted to drugs. On one occasion it became known that Miss
Campbell
had entered a clinic – the Cottonwood de Tucson Centre, Arizona. The explanation that she gave was that she was having therapy aimed at dealing with behaviour and anger problems. The reality is that she was also being treated for drug abuse.
Campbell
was a drug addict. It revealed that she was receiving therapy with Narcotics Anonymous and gave some details of the meetings that she was attending. It was illustrated by photographs showing her leaving a Narcotics Anonymous meeting in Chelsea. Others with her, who were presumably leaving the same meeting, had their faces pixellated. The tenor of the article was sympathetic to Miss
Campbell.
Campbell’s
privacy were made on her behalf to the Appellants. They were referred to, in terms which were no longer sympathetic, in a further article in the Mirror on 5 February. This made further reference to the fact that Miss
Campbell
was receiving treatment for drug abuse and contained a further photograph of her leaving the Narcotics Anonymous meeting in the previous week. Two further unsympathetic articles were published about Miss
Campbell
in the Mirror on 7 and 8 February.
Campbell
brought an action against the appellants. She claimed damages for ‘breach of confidence and/or invasion of privacy’ in respect of the first two publications, and relied upon the latter two publications as entitling her to aggravated damages. She also claimed that the Appellants were in breach of duty under the Data Protection Act 1998 and that she was entitled to compensation under s.13 of that Act.
Campbell
did not pursue the contention that she had an independent cause of action for breach of privacy.
Campbell
had established an entitlement to damages for breach of confidentiality and to compensation under the Data Protection Act, although he treated these as alternative bases for the same award. That award he assessed in the sum of £2,500. That sum may seem modest, but there is an explanation for this. It was conceded from the outset by Miss
Campbell
that the Appellants were entitled to publish the fact that she was a drug addict and was receiving treatment for her addiction. Her claim for damages and compensation related only to the additional information conveyed by the articles and the photographs published by the Appellants.
Campbell
in relation to her claim and sounded in aggravated damages insofar as this caused increased injury to her feelings. He assessed the consequent increment to the damages in the sum of £1,000.
Campbell
and his award of aggravated damages. Before considering in more detail the issues raised by this appeal, we propose to set out the details of the first two articles of which complaint is made, as summarised by the Judge:
“The Articles Complained of
Thursday 1st February 2001
On the front page between two colour photographs of Miss NaomiCampbell,
the one dressed ordinarily in a baseball cap and windcheater with the caption below “Therapy: Naomi outside Meeting” and the other glamorously and only partially covered with what appeared to be strings of beads, was the headline “Naomi: I am a drug addict”. The articles written by Polly Graham, who did not give evidence, were marked “exclusive” and read:-
“SUPERMODEL NaomiCampbell
is attending Narcotic 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 differentvenue
she made a low-key entrance to a women only gathering of recovering addicts.
Despite her £14 million 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 wasvery
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”.
On pages 12 and 13 the article giving the full story appears with photographs under the headline “Naomi’s finally trying to beat the demons that have been haunting her”. The central photograph shows Miss NaomiCampbell
outside the
venue
of a Narcotics Anonymous meeting. The caption below states “Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week”. The picture was taken by Frank Doran, a freelance photographer who was specifically engaged for the job by the Mirror. The faces of at least two people are pixillated.
The article included the following passages:-
“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 woman 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.
The organisation encourages addicts to stay away not just from drugs but also from alcohol and even cigarettes as a part of a 12 step plan to recovery.
They take it one day at a time, starting with the acceptance that there is a problem.”
Her courageous decision to deal with her problem shows that the girl they call Babywoman is finally growing up.
“Something had to give, and thank God it was the drugs and partying,” says Naomi’s friend, she’s still fragile, but she’s getting healthy.”
“Naomi has been scared by what’s happened to people around her,” adds her friend.
“Flavio has coaxed her into making the right decision. It could have all ended so differently.”
Campbell’s
Solicitors wrote a letter to the Editor of the Mirror marked “Private and Confidential” enclosing a copy of the proceedings which had been issued that day. They stated:-
“Publication of this article is a breach of confidentiality and an invasion of privacy.
Please let us have your undertaking by return that
1. You will not publish further ….confidential and/or private information.
2. You will not commit any further unlawful invasions of our client’s privacy.”
The Article of Monday 5th February 2001
Campbell’s.
Underneath was the caption:-
“Help. Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs”.
The article was headlined:-
“After years of self-publicity and illegal drug abuse, NaomiCampbell
whinges about privacy”
In the article are these words:-
“The Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous”
In the same edition there is an editorial under the heading “Voice
of the Mirror” entitled “No Hiding Naomi” which ends with these words:-
“If NaomiCampbell
wants to live like a nun let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it.”
On page 10 of the same edition there are further columns entitled “A wait off our minds” in which it is stated:
“For the past 3 months she has been attending Narcotics Anonymous meetings to help her fight her addiction to drink and drugs”.”
Inaccuracies
Campbell
had been attending Narcotics Anonymous meetings for three months were inaccurate. In fact, she had been attending such meetings for about two years, in the United Kingdom and abroad.
Campbell
regularly went twice a day to group counselling was inaccurate. It greatly exaggerated the frequency of her attendance at such meetings.
Campbell
arriving at the meeting. In fact it was taken as she was leaving after the meeting.
Sources of information
Campbell,
and those advising her, were uncertain as to how the Appellants had been in a position to photograph her and, initially, suspected that they had been stalking her. The Judge found, however, that the Appellants had had a source of information, who was either a fellow sufferer attending Narcotics Anonymous meetings or a member of Miss
Campbell’s
staff or entourage.
The Judge’s findings
Campbell
had to establish three matters: (1) that the details published had ‘the necessary quality of confidence about them’; (2) that the details were imparted in circumstances importing an obligation of confidence and (3) that the publication of the details was to her detriment.
v
Lenah Game Meats Pty Ltd [2001] HCA 63 at paragraph 42, where he said:
“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.”
Morland J. held that information relating to Miss
Campbell’s
therapy for drug addiction giving details that it was by regular attendance at Narcotics Anonymous meetings satisfied this test.
v
B [2002] EWCA Civ 337; [2002] 3 WLR 542; at paragraph 11(
vii).
He suggested that:
“usually the answer to the question whether there exists a private interest worthy of protection will be obvious.”
The Judge held that it was obvious that there existed a private interest worthy of protection.
“In my judgment the information giving details of her regular attendance at Narcotics Anonymous meetings for therapy must have been imparted in circumstances importing an obligation of confidence. The undisclosed source whether a fellow sufferer of drug addiction attending Narcotics Anonymous meetings or a member of Miss NaomiCampbell’s
staff or entourage owed her an obligation of confidence in relation to the information; whether or not that information was supplemented by a Mirror reporter attending a Narcotics Anonymous meeting or by covert photography. The information clearly bore the badge of confidentiality and when received by the defendants they, Mr Morgan and the Mirror journalists were clothed in conscience with the duty of confidentiality.”
“In my judgment clearly the publication of information about details of her therapy in regularly attending meetings of Narcotics Anonymous was to Miss NaomiCampbell’s
detriment. It was,
viewed
objectively, likely to effect adversely her attendance and participation in therapy meetings.
Although in my judgment the publication of the facts that she was a drug addict and had previously lied in saying that she never had a drug problem, caused her considerable distress, I am satisfied on the evidence that apart from that the publication of the details about her therapy sessions with Narcotics anonymous caused her significant distress.”
v
Hello! Ltd [2001] 1 QB 967, which he held supported his conclusions.
Campbell
had established the three requirements of her case of breach of confidence. What he proceeded to consider under this head was whether the Appellants could demonstrate that they were none the less entitled to publish the material in question on the ground that they were exercising the right of freedom of expression in circumstances where this was in the public interest.
v
B. He said that this judgment made it unnecessary for him to address the extensive arguments of law that had been presented to him, based on 7 lever-arch files of authorities. He commented at paragraph 51:
“While I entirely accept Mr Browne’s submission that Section 12(4) of the Human Rights Act 1998 applies to final relief, in my judgment it cannot whittle away to any extent rights to respect for private life under Article 8 of the convention which is a qualification to the freedom of expression under article 10(2).
I reject as absurd Mr Browne’s submission that because there are some errors of detail in the Mirror’s revelation that MissCampbell
was attending therapy sessions at Narcotics Anonymous, for example as to the length of time that she had been attending such sessions, the information lost the mark of confidentiality.”
Campbell
had exposed herself and her private life to the media. In the light of this he considered how to reconcile the demands of Articles 8 and 10 of the Human Rights Convention. His conclusions appear in the following passage of his judgment:
“Although many aspects of the private lives of celebrities and public figures will inevitably enter the public domain, in my judgment it does not follow that even with self-publicists every aspect and detail of their private lives are legitimate quarry for the journalist. They are entitled to some space of privacy.
In my judgment the media to conform with article 8 should respect information about aspects or details of the private lives of celebrities and public figures which they legitimately choose to keep private, certainly “sensitive personal data”; unless there is an overriding public interest duty to publish consistent with article 10(2).
Clearly in my judgment the public had a need to know that Miss NaomiCampbell
had been misleading the public by her denials of drug addiction and balanced and positive journalism demanded that the public be told that Miss Naomi
Campbell
was receiving therapy for her drug addiction.
Clearly the Mirror was fully entitled to put the record straight and publish that her denials of drug addiction were deliberately misleading. She might have been thought of and indeed she herself seems to be a self-appointed role model to young black women.
However consistent with Article 8 in my judgment the court should protect from publication and give remedies for the wrongful publication in breach of confidence of details, which have the mark and badge of confidentiality, of the private life which a celebrity or public figure has chosen not to put in the public domain unless despite that breach of confidentiality and the private nature of the information publication is justifiable. Article 10 is not an unqualified right as article 10(2) requires respect for the right of privacy has to be shown including by the media. Striking the balance between article 8 and 10 and having full regard to section 12(4) of the 1998 Act, clearly in my judgment Miss NaomiCampbell
is entitled to the remedy of damages and/or for compensation.”
Concessions
Campbell,
‘did not pursue the claim for damages for infringement of privacy’. The effect of this concession by Mr Caldecott requires analysis. As Diplock LJ remarked in Letang
v
Cooper [1965] 1 QB 232 at p.242:
“a cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”
By his concession Mr Caldecott limited the scope of the legal argument that he advanced in relation to the facts. The extent to which he did so became clearer to us in the course of argument.
v
Hello Ltd that the photographs of the Douglas wedding conveyed to the public information that was not otherwise truly obtainable, namely what the event and its participants looked like. He also submitted that the fact that those with Miss
Campbell
had their faces pixellated demonstrated that ordinary people in Miss
Campbell’s
position would have a reasonable expectation of privacy.
Campbell
out in the street’ she might have had to resort to the free-standing tort of breach of privacy to make out her case.
Campbell’s
case. They illustrate and draw attention to the information that she was receiving therapy from Narcotics Anonymous. Insofar as publication of that information constituted a breach of confidence, the illustrations constituted an aspect of that breach that had potential relevance to the assessment of damages. Insofar as publication of that information was not a breach of duty, that position was not altered by the accompanying photographs. We think that this conclusion accords with the approach of the Judge to the photographs – see, in particular, the passage from his judgment quoted at paragraph 22 above.
Campbell
made a further important concession. She accepted that to a large extent the publications were justified as being in the public interest. The nature of her case was clarified by the following paragraph of her pleaded Reply:
“The claimant does not claim that the disclosure by the defendant that she had a drug problem was a breach of confidentiality or an infringement of her of right of privacy. The claimant’s complaint is that by obtaining and publishing information relating to the receipt by the claimant of treatment of her drug problem at Narcotics Anonymous the defendant acted in breach of confidence.”
Campbell
was receiving treatment for her addiction. The reason for these concessions was his acceptance, on behalf of Miss
Campbell,
that, by mendaciously asserting to the media that she did not take drugs, she had rendered it legitimate for the media to put the record straight.
“…….this is a situation in which the information, were it not for the lies and the need to correct the public posturing, would plainly be confidential, so one has to look at more than the simple conspicuous nature of the confidentiality of the information at first sight. The editor needs to consider the question of whether there can be a public interest justification.…”
views
expressed by Sedley LJ and Keene LJ in Douglas
v
Hello Ltd, nor would we have to consider whether there was a tort of breach of privacy in English law following the coming into force of the Human Rights Act. Having regard to the concessions that have been made on both sides we have concluded that he is correct. Before outlining the issues that remain, we propose to summarise those conclusions of Morland J. which no longer appear to be contentious:
i) The information that Miss
Campbell
was a drug addict, that she was receiving treatment for her addiction from Narcotics Anonymous and the details of that treatment were matters that, despite her prominent position as a fashion model, she would have been entitled to keep confidential, had she not gone on record as asserting that she did not take drugs.
ii) The fact that Miss
Campbell
was a drug addict and was receiving treatment was communicated in confidence to members of her entourage and to others attending the treatment sessions at Narcotics Anonymous.
iii) An unknown source, either from her entourage or from those attending meetings at Narcotics Anonymous, communicated this information, in breach of confidence, to the appellants.
iv) The appellants were aware that the information disclosed was confidential. They rightly believed, however, that they were entitled to publish the information that Miss
Campbell
was a drug addict and was receiving treatment for her addiction in order to correct her public pronouncements that she did not take drugs.
v
B, and, in particular the following passage from paragraph 11(xii) of his judgment at paragraph 48:
“Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
The issues
Campbell’s
participation in therapy provided by Narcotics Anonymous, which formed part of the information disclosed in breach of confidence, did not fall within the category of information, the publication of which was justified in order to rectify the false assertion made by Miss
Campbell
that she did not take drugs. He held that in publishing those details, the appellants committed a breach of confidentiality. In challenging that finding, Mr Browne advanced three propositions:
i) The material in respect of which complaint is made is, in its context, too insignificant to attract the protection of the law of confidentiality; the more so as a substantial part of that material is not even accurate.
ii) The Appellants’ entitlement in the public interest to publish the fact that Miss
Campbell
was a drug addict and was receiving treatment carried with it the entitlement to publish such details as were provided in relation to that treatment.
iii) The Appellants acted honestly in publishing the material in question and that fact, of itself, provides them with a defence to a claim for breach of confidence.
valid
are the issues that arise for determination on this part of the appeal.
Was the information confidential?
“In my judgment it matters not whether therapy is obtained by means of professional medical input or by alternative means such as group counselling or as here organised meetings for discussion between sufferers.”
Campbell
was receiving therapy from Narcotics Anonymous was to be equated with disclosure of clinical details of medical treatment. It was not, however, simply because of the analogy he drew between her therapy and medical treatment that Morland J. held the information disclosed to be confidential. The first test of confidentiality that he purported to apply was that suggested by Gleeson CJ in Australian Broadcasting Corporation
v
Lenah Game Meats Pty Ltd at paragraph 42. That paragraph deserves citation in full:
“There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is 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.”
validity
of this test, but for ‘two small cavils’. First he suggested that the test conflated two different considerations (i) whether the facts related to somebody’s private life and (ii) whether they were sufficiently significant to justify the intervention of the court.
v
Guardian Newspapers [1990] 1 AC 109. One of these was that at p.282 where Lord Goff observed that the law of confidentiality did not protect trivial information. We think that Mr Caldecott was correct to suggest that Gleeson CJ’s test embraces both the question of whether information was private and also the question of the degree of its significance. However, we do not consider that the test is any the worse for that.
very
meaningful in practice. We think, however, that Lord Woolf was right to say in A
v
B that usually it will be obvious whether there is a private interest worthy of protection.
Campbell
was a drug addict. He explained in evidence how he rejected an approach that castigated Miss
Campbell
for hypocrisy in favour of one which commended her for her efforts to overcome her addiction. We have some sympathy with his reaction. Gratuitous disclosure of confidential information may be objectionable even where it shows the complainant in a good light. Some who give to charity are anxious that their generosity should remain anonymous. Here, however, Mr Morgan was making what had been accepted to have been proper disclosure of the discreditable fact that Miss
Campbell
was a drug addict. We think it harsh to criticise him for painting a somewhat fuller picture in order to show her in a sympathetic light.
Campbell
was a drug addict and that she was receiving treatment, it does not seem to us that it was particularly significant to add the fact that the treatment consisted of attendance at meetings of Narcotics Anonymous. Mr Browne referred us to evidence as to the significance of anonymity, reflected by the name of this organisation. First and foremost it is intended to protect its members from the stigma of drug addiction. That benefit was denied to Miss
Campbell
in any event. Secondly anonymity was intended to support an atmosphere of equality at meetings – but it is clear, and it was inevitable, that Miss
Campbell’s
identity was known to others who attended meetings with her. The third reason – to protect the organisation from self-appointed spokesmen, has no relevance in the present context.
Campbell
was a drug addict, would find it highly offensive, or even offensive that the Mirror also disclosed that she was attending meetings of Narcotics Anonymous. The reader might have found it offensive that what were obviously covert photographs had been taken of her, but that, of itself, is not relied upon as ground for legal complaint.
Campbell
stated that she found it particularly unpleasant and intrusive that the Mirror printed details of her treatment and photographs of her outside one of the counselling sessions. The Judge was satisfied that, in addition to the considerable distress that she felt at the revelation that she had a drug problem, the publication of the details about her therapy sessions with Narcotics Anonymous caused her significant distress. We do not believe that it can have been easy in practice to separate the distress Miss
Campbell
felt at being identified as a drug addict, together with the distress she felt at the intrusion of the covert photographs, from any additional distress that she felt at the disclosure that she was attending meetings of Narcotics Anonymous. If that additional distress was, however, significant, we consider that Miss
Campbell
was, in that respect, over sensitive.
Campbell’s
attendance at Narcotics Anonymous was, in its context, of sufficient significance to shock the conscience and justify the intervention of the court. On the contrary, we have concluded that it was not.
Campbell’s
attendance at Narcotics Anonymous meetings. They had, however, insignificant impact on the story as a whole because the details faded into insignificance compared to the central fact that Miss
Campbell
was receiving treatment for drug addiction.
Campbell
complains was not, in its context, sufficiently significant to amount to a breach of duty of confidence owed to her. This conclusion is closely linked to that which we reach in respect of the next issue.
Entitlement in the public interest to publish the peripheral details
Van
Vuuren
v
Kruger [1993] (4) SA 842 and from the decision of the United States Court of Appeals, Sixth Circuit, in Bichler
v
Union Bank and Trust Company (1984) 745 F. 2d 1006.
v
Times Newspapers [1997] QB 650 at 671 in support of a test that what was published should be ‘not unconnected’ with the purpose in hand, and not ‘entirely irrelevant and extraneous’.
view
this sophistry with enthusiasm. Both the South African and the American authorities were addressing a tort of breach of privacy. In this jurisdiction both protection of privacy by expanding the scope of breach of confidence and the public interest defence of qualified privilege in defamation are in the course of development – as to the latter see Reynolds
v
The Times [2001] 2AC 127 and Loutchansky
v
The Times [2002] 1 AER 652, [2002] 2 WLR 640. We do not believe that the same test of public interest applies to justify publication in these two
very
different torts.
view
of the publications in this case. The primary information that had been conveyed to the appellants was that Miss
Campbell
was regularly attending Narcotics Anonymous. The fact that she was a drug addict was a secondary inference from this primary fact, albeit an inescapable inference. We find the suggestion that the Mirror should have published the secondary inference without publishing the primary fact from which this inference was drawn to be lacking in realism. What is it suggested that the Mirror should have published? ‘Naomi
Campbell
is a drug addict. The Mirror has discovered that she is receiving treatment for her addiction’? Such a story, without any background detail to support it, would have bordered on the absurd. We consider that the detail that was given, and indeed the photographs, were a legitimate, if not an essential, part of the journalistic package designed to demonstrate that Miss
Campbell
had been deceiving the public when she said that she did not take drugs.
v
France [2001] EHRR 1. The applicants were journalists who had published an article critical of the managing director of Peugeot, accusing him of awarding himself a massive pay rise while resisting demands for pay rises from his workforce. They had illustrated this article with photocopies of his tax returns. For this they were convicted and fined for handling the fruits of a breach of professional confidence, contrary to the Criminal Code. The Strasbourg Court held that this treatment breached Article 10, stating at paragraph 54:
“In essence, that Article leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility. It protects journalists’ rights to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism.”
Campbell’s
drug addiction that had the detail necessary to carry credibility. 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.
Honesty
v
Tan [1995] 2 AC 378 and Twinsectra
v
Yardley [2002] 2 WLR 802. On this jurisprudence Mr Browne constructed an ambitious submission that, in a case such as this, a defendant will only be liable for breach of confidence if (a) he knows that the information that he publishes is confidential and (b) he knows that publication cannot be justified on the ground that it is in the public interest. Thus, so he submitted, an editor who publishes material that he knows is confidential in the mistaken belief that this is in the public interest will not be guilty of breach of confidence. He will only be liable if he has acted dishonestly.
valuable
kind, it is not an appropriate word to use in relation to the publication of information about someone’s private life in circumstances which would make the publication offensive to any fair-minded person. We consider that the media can fairly be expected to identify confidential information about an individual’s private life which, absent good reason, it will be offensive to publish. We also believe that the media must accept responsibility for the decision that, in the particular circumstances, publication of the material in question is justifiable in the public interest.
violates
the right of enjoyment of private or family life is not acceptable. Mr Browne has only been able to advance such a suggestion because of the shoe-horning into the tort of breach of confidence publication of information that would, more happily, be described as breach of privacy.
Campbell’s
favour for breach of confidence must be set aside.
The Data Protection Act 1998
Campbell
had established an entitlement to damages under this section. He described his path to this conclusion as weaving his way through a thicket, and the Act is certainly a cumbersome and inelegant piece of legislation. It was passed to give effect to Directive 95/46 EC of the European Parliament and the Council on ‘the protection of individuals with regard to the processing of personal data and the free movement of such data’ (‘the Directive’). The Act largely follows the form of the Directive. It replaces the Data Protection Act 1984.
Campbell’s
complaint of breach of the Act was restricted to the act of publishing the newspapers containing the articles about her – that is the steps taken to make available to the public the newspapers in question. It was accepted by the appellants that these steps constituted ‘processing’ within the Act and were, in consequence, subject to its provisions. Their contentions were as follows: (1) the publications fell within an exemption from the relevant provisions of the Act by
virtue
of the provisions of s.32 of the Act; (2) in any event, the publications satisfied the requirements of the Act. Before us the Appellants sought and obtained leave to withdraw the concession that the publication of their newspapers constituted ‘processing’. They put at the forefront of their case the contention that the publications complained of fell outside the Act altogether. Alternatively they argued that they fell within the s.32 exemption. They no longer actively pursued the contention that they had satisfied the requirements of the Act. Indeed, much of their argument was founded on the submission that it was
virtually
impossible for journalists to comply with the requirements of the Act.
Definitions
“‘data’ means information which-
(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,
(b) is recorded with the intention that it should be processed by means of such equipment,
(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or
….
‘personal data’ means data which relate to a living individual who can be identified-
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;
‘processing’, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-
(a) organisation, adaptation or alteration of the information or data,
(b) retrieval, consultation or use of the information or data,
(c) disclosure of the information or data by transmission, dissemination or otherwise making available, or
(d) alignment, combination, blocking, erasure or destruction of the information or data;
….
‘using’ or ‘disclosing’, in relation to personal data, includes using or disclosing the information contained in the data.
….
2. In this Act ‘sensitive personal data’ means personal data consisting of information as to-
(a) the racial or ethnic origin of the data subject,
(b) his political opinions,
(c) his religious beliefs or other beliefs of a similar nature,
(d) whether he is a member of a trade union (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992),
(e) his physical or mental health or condition,
(f) his sexual life,
(g) the commission or alleged commission by him of any offence, or
(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.”
The requirements of the Act
“..a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;”
It was accepted that the Appellants should be treated generically as the data controller. In argument the data controller tended to be equated with Mr Piers Morgan, the Editor of the Mirror, who had been personally responsible for the decisions taken in relation to the content of the articles complained of.
“1. (1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.”
“CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA
1. The data subject has given his consent to the processing.
2. The processing is necessary –
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with aview
to entering into a contract.
3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4. The processing is necessary in order to protect thevital
interests of the data subject.
5. The processing is necessary –
(a) for the administration of justice,
(b) for the exercise of any functions conferred on any person by or under any enactment,
(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or
(d) for the exercise of any other functions of a public nature exercised in the public interest by any person.
6. (1) the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.”
“3. –(1) the disclosure of personal data –
(a) is in the substantial public interest;
(b) is in connection with –
(i) the commission by any person of any unlawful act (whether alleged or established),
(ii) dishonesty, malpractice, or other seriously improper conduct by, or the unfitness or incompetence of, any person (whether alleged or established), or
(iii) mismanagement in the administration of, or failures in services provided by, any body or association (whether alleged or established);
(c) is for the special purposes as defined in section 3 of the Act; and
(d) is made with aview
to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest.”
The exemption
“32. (1) Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if-
(a) the processing is undertaken with aview
to the publication by any person of any journalistic, literary or artistic material,
(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.
(2) Subsection (1) relates to the provisions of-
(a) the data protection principles except the seventh data protection principle.
(b) section 7,
(c) section 10,
(d) section 12, and
(e) section 14(1) to (3).
(3) In considering for the purposes of subsection (1)(b) whether the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practice which –
(a) is relevant to the publication in question, and
(b) is designated by the Secretary of State by order for the purposes of this subsection.
(4) Where at any time (“the relevant time”) in any proceedings against a data controller under section 7(9), 10(4), 12(8) or 14 or byvirtue
of section 13 the data controller claims, or it appears to the court, that any personal data to which the proceedings relate are being processed-
(a) only for the special purposes, and
(b) with aview
to the publication by any person of any journalistic, literacy or artistic material which, at the time twenty-four hours immediately before the relevant time, had not previously been published by the data controller,
the court shall stay the proceedings until either of the conditions in subsection (5) is met.
(5) those conditions are-
(a) that a determination of the Commissioner under section 45 with respect to the data in question takes effect, or
(b) in a case where the proceedings were stayed on the making of a claim, that the claim is withdrawn.
(6) For the purposes of this Act “publish”, in relation to journalistic, literary or artistic material, means make available to the public or any section of the public.”
The decision of the court below
i) The processing was not ‘fair’. The photographs had not been fairly obtained. They had been taken covertly, giving no opportunity to Miss
Campbell
to refuse to be photographed.
ii) The processing was unlawful, in that it was in breach of confidence.
iii) None of the conditions in Schedule 2 were satisfied.
iv) The information published constituted sensitive personal data. None of the specific conditions in Schedule 3 were satisfied. Nor did the appellants satisfy the conditions in the Data Protection (Processing of Sensitive Personal Data) Order 2000.
virtually
conceded on the appeal.
Campbell,
that they could not. His reasoning, which the Judge accepted, can be summarised as follows. S.32 draws a clear distinction between processing and the subsequent publication – see the references in subsections 1(a) and 4(b) to processing ‘with a
view
to publication’ and in subsections 1(b) and 3 to belief that publication ‘would be’ in the public interest. We continue in the Judge’s own words at paragraph 95:
“In my judgment Mr White’s submission is clearly right. The wording of the Section is in my judgment dealing only with pre-publication processing. It is aimed at limiting a disproportionate restraint on freedom of expression by publication such as the granting of injunctions to stop publication….
96. My interpretation accords with theviews
of Professor Ian Lloyd in his “Guide to the Data Protection Act 1998 at paragraph 6.9, of Mr Michael Tugendhat Q.C in “The Data Protection Act and the Media" (Yearbook of Copyright and Media Law 2000) p.115 at pages 130-131 and of Jay and Hamilton on “Data Protection Law and Practice" paragraphs 15-02(c) and 15.13.”
view
to publication, they enjoyed no special protection from claims for compensation once publication had taken place.
“What drives the new point taken by the Appellant is concern as to the scope of the section 32 exemption on the interpretation of that provision adopted by Morland J. That concern is understandable, and should (and doubtless will) lead to a careful re-examination of the correctness of Morland J’s ruling on the scope of the section 32 exemption.”
Notwithstanding this observation, Mr White strove
vigorously
in his oral submissions to uphold Morland J.’s conclusions.
Campbell
has limited her complaint to the publications themselves of the processed data. Had she complained both of the processing and of the publication it would not have availed the appellants to argue that the Act had no application to publication. They would have needed the protection of s.32.
(1) Does the Act apply to publication of newspapers and other hard copies containing information that has been subjected to data processing?
(2) Does the s.32 exemption only apply up to the moment of publication?
(3) Does the s.32 exemption apply to publication, insofar as this falls within the scope of the Act?
Does the Act apply to publication of hard copies?
“(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community;”
“(27) Whereas the protection of individuals must apply as much to automatic processing of data as to manual processing; whereas the scope of this protection must not in effect depend on the techniques used, otherwise this would create a serious risk of circumvention; whereas nonetheless, as regards manual processing, this Directive covers only filing systems, not unstructured files…”
“(b) ‘processing of personal data’ (‘processing’) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available alignment or combination, blocking, erasure or destruction.”
“1. This directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.”
While the definition of processing is reproduced in the Act, this provision has no counterpart.
very
wide. ‘Use of the information or data’ and ‘disclosure of information or data by transmission, dissemination or otherwise making available’ are phrases, given their natural meaning, which embrace the publication of hard copies of documents on which the data has been printed. Is such a meaning consistent with an interpretation which gives effect, in a sensible manner, to the objects of the Act?
“1. Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this directive is entitled to receive compensation from the controller for the damage suffered.
2. The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damage.”
If publication were not treated as part of a ‘processing operation’ this provision would be deprived of much of its force.
“(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes.
(3) In proceedings brought against a person byvirtue
of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.”
Once again, if these provisions are to be effective, publication must be treated as part of the operations covered by the requirements of the Act.
Does the s.32 exemption apply only up to the moment of publication?
Campbell
and the conclusions of Morland J. are all to like effect. S.32 applies to protect journalists from legal process, such as ‘gagging injunctions’ prior to publication, but provides no protection in relation to proceedings for infringement of the Act once publication has taken place. We quote from but one of the commentators cited by Morland J. Michael Tugendhat, writing in the Yearbook of Copyright and Media Law 2000 commented at p.130 on the effect of s.32:
“The Government made clear in Parliament that the intention was that the media should normally do their job in conformity with the data protection principles. The exemption was introduced to take account of the special difficulties that had arisen in the recent past when, notoriously, certain public figures used their financial ability to stifle legitimate media inquiries into their malpractice. It was only to apply before publication. So this is not so much an exemption from the Act as a limited exemption from interim relief where there is a claim that there has been a contravention of the Act.”
“(37) Whereas the processing of personal data for purposes of journalism or for purposes of literary or artistic expression, in particular in the audio-visual
field, should qualify for exemption from the requirements of certain provisions of this Directive in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed in particular in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whereas Member States should therefore lay down exemptions and derogation necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing, measures on the transfer of data to third countries and the power of the supervisory authority.”
“Processing of personal data and freedom of expression
Member States shall provide for exemptions or derogations from the provisions of this chapter, chapter IV and chapterVI
for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”
The parties were agreed that this Article imposes a positive obligation on Member States to provide exemptions in respect of data processing for the special purposes insofar as necessary to reconcile the right to privacy with the rules governing freedom of speech, but no further.
“Derogations and exemptions under article 9 must follow the principle of proportionality. Derogations and exceptions must be granted only in relation to the provisions likely to jeopardise freedom of expression and only in so far as necessary for the effective exercise of that right while maintaining a balance with the right to privacy of the data subject.
The directive requires a balance to be struck between two fundamental freedoms. In order to evaluate whether limitations of the rights and obligations flowing from the directive are proportionate to the aim of protecting freedom of expression particular attention should be paid to the specific guarantees enjoyed by the individuals in relation to the Media. Limits to the right of access and rectification prior to publication could be proportionate only in so far as individuals enjoy the right to reply or obtain rectification of false information after publication.
Individuals are in any case entitled to adequate forms of redress in case ofviolation
of their rights.
In evaluating whether exemptions or derogations are proportionate, attention must be paid to the existing ethic and professional obligations of journalists as well as to the self regulatory forms of supervision provided by the profession.”
view
to publication of previously unpublished material. The stay is to subsist unless and until either the data controller’s claim is withdrawn or the Commissioner determines that the claim is not
valid.
Presumably, if publication takes place before the Commissioner has ruled on the claim, the stay ceases to be effective. S.32 leaves this to inference.
valiantly
to meet this problem by suggesting that sub-sections (1) to (3) provided the data controller with the additional benefit that, pending publication, the data subject would be unable to resort to certain ‘self-help’ remedies provided for in ss.7, 10, 12 and 14. That does not explain, however, the fact that the exemption applies to the provisions of all the data principles except the seventh. It is these principles which impose on the data controller the positive obligations which regulate the manner in which data processing is carried on.
Campbell
could have invoked s.13 to seek compensation for the publication of the fact that she is a drug addict, if s.32 has the limited effect for which Mr White contended.
“Following the meetings to which I referred, we have included in the Bill an exemption which I believe meets the legitimate expectations and requirements of those engaged in journalism, artistic and literacy activity. The key provision is Clause 31. This ensures that provided that certain criteria are met, before publication – I stress “before” – there can be no challenge on data protection grounds to the processing of personal data for the special purposes. The criteria are broadly that the processing is done solely for the special purposes; and that it is done with aview
to the publication of unpublished material. Thereafter, there is provision for exemption from the key provisions where the media can show that publication was intended; and that they reasonably believe both that publication would be in the public interest and that compliance with the bill would have been incompatible with the special purposes.”
The word ‘thereafter’ clearly means ‘after publication’.
“Given the high importance of freedom of inquiry and expression to our society, we must, on balance, favour publication, subject to reasonable restraint on the journalist’s actions. The present test has been designed with some care to do that. Of course journalists might get it wrong – that is in the nature of things. But they need to get it significantly wrong before the law should intervene.
….
We should maintain a proper emphasis on freedom of expression. Journalists already have to meet three tests, and can be challenged on any one of them. This particular one could put on the spike a range of stories that have merit in terms of the public interest, by raising the prospect of argument in court and of the application of penalties because of disagreement about the extent of those stories’ service to the public interest.”
Having regard to the provisions of sub-section (4) and (5), the ‘intervention of the law’ and the ‘argument in court’ contemplated can only have been after publication.
v
Hart [1993] AC 593 should be a last resort - see the comments of Lord Hoffmann in Robinson
v
Secretary of State for Northern Ireland and Others [2002] UKHL 32 at paragraph 40.
Does the s.32 exemption apply to publication?
view
to publication the door was open to the argument advanced on behalf of Miss
Campbell
that the processing could not include the publication itself. The result of this argument is an absurdity. Exemption is provided in respect of all steps in the operation of processing up to publication on the ground that publication is reasonably believed to be in the public interest – yet no public interest defence is available to a claim for compensation founded on the publication itself. Much of the consideration that we have given to the previous issue underlines the absurdity of this result. We do not consider that the wording of s.32 compels such a result.
Campbell’s
claim.
Does the s.32 exemption apply on the facts of this case?
“Conscious of the terms of the PCC Code of Conduct, I considered carefully whether there was a public interest in the publication of the fact that MsCampbell
had a drug problem and had sought to deal with it. I thought there were two main reasons why publication was justified. (i) It appeared that Naomi
Campbell
had been committing a serious criminal offence by possessing and using a Class A drug over a period of years. (ii) As a role model to young people, she had held herself out in the media as someone who had managed to remain immune from the use of drugs in an industry where drug abuse was notoriously common. She had thus seriously misled the public. (iii) She had frequently made references to her private life in many interviews with the media.
There were two ways I thought The Mirror could approach the story. The first was to concentrate on NaomiCampbell’s
deceit of the public and expose her as a drug addict and a hypocrite who had lied to the public. The second course, which I preferred, was to publish a sympathetic story, making the point that she had admitted to drug addiction, chosen to seek help for it, and had demonstrated real commitment to tackling her problem by regular attendance at Narcotic Anonymous over a prolonged period. It was this second approach which I decided we should adopt.”
Campbell.
Before publishing the first article Mr Morgan had approached Miss
Campbell’s
agent, Miss White, about the proposed publication. She had made it plain that there was no consent to the publication. In these circumstances, the public interest justified the publication of the article without Miss
Campbell’s
consent.
Campbell,
Mr White accepted that s.32(1)(a) was satisfied. As to s.32(1)(b), he submitted that it was not objectively reasonable for Mr Morgan to believe that publication of the matters complained of was in the public interest. In support of this submission he relied primarily on the arguments advanced in support of the contention that publication of the details of Miss
Campbell’s
attendance at Narcotics Anonymous constituted a breach of confidence.
“The use of long lens photography to take pictures of people in private places without their consent is unacceptable.”
The Judge had found that the covert photography of Miss
Campbell
emerging from the Narcotics Anonymous meeting was contrary to the letter and the spirit of the Code.
Campbell’s
attendance at Narcotics Anonymous, or the photographs of her leaving the meeting, in order to put the record straight. It followed that Mr Morgan could not reasonably have believed it was incompatible with the purpose of journalism to refrain from publishing these details.
Campbell’s
attendance at Narcotics Anonymous was part of a journalistic package that it was reasonable to publish in the public interest. We do not consider that it would have been reasonably practicable to comply with the provisions of the data protection principles while at the same time making the publications in question. It follows that the Appellants have made good their contention that the three conditions of exemption under s.32 were satisfied.
Aggravated damages
Campbell
and ‘trashed her as a person’ in a highly offensive and hurtful manner. The Appellants objected that this case was not pleaded and needed to be supported by a finding that the opinions expressed about Miss
Campbell
were not honestly held. It seems to us that the terms of the articles in question justified the findings made by the Judge and that it would have been open to him to award aggravated damages in respect of them had his findings on liability been
valid.