B e f o r e :
LORD PHILLIPS, Master of the Rolls
LORD JUSTICE CHADWICK
LORD JUSTICE KEENE
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr Andrew Caldecott QC and Mr Antony White QC (instructed by Schilling & Lom for the Respondent)
Mr Desmond Browne QC, Mr Richard Spearman, QC, and Mr Mark Warby, QC (instructed by Davenport Lyons for the Appellant)
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Lord Phillips MR:
This is the judgment of the Court.
- Miss Naomi 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
- Miss 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.
- When talking to the media, Miss 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.
- On 1 February 2001 the appellants published in the Mirror an article that disclosed that Miss 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.
- Complaints that the article invaded Miss 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.
- Miss 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.
- The appellants denied that any of the material that they had published was confidential or that they had committed a breach of the Data Protection Act. They further denied that there existed in English law any right of privacy independent of the protection given by the law of breach of confidence and the Data Protection Act. At the trial Miss Campbell did not pursue the contention that she had an independent cause of action for breach of privacy.
- These are the first proceedings in which the interpretation of the Data Protection Act has fallen for determination.
- In the court below, Morland J. held that Miss 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.
- Morland J. held that the two later articles belittled Miss 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.
- Before us the Appellants have challenged both the Judge’s finding that they were in breach of duty to Miss 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 Naomi Campbell, 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 Naomi Campbell 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 different venue 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 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”.
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 Naomi Campbell 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.”
- On the 1st February 2001 Miss Naomi 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
- Notwithstanding the claimant’s Solicitor’s letter of the 1st February the Mirror published the second article complained of under the headline “Pathetic” below which was a photograph with all faces pixillated except for Miss Naomi 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, Naomi Campbell 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 Naomi Campbell 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”.”
- The statements that Miss 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.
- The statement that Miss Campbell regularly went twice a day to group counselling was inaccurate. It greatly exaggerated the frequency of her attendance at such meetings.
- The caption under the photograph in the first article erred in stating that it showed Miss Campbell arriving at the meeting. In fact it was taken as she was leaving after the meeting.
Sources of information
- Miss 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.
- So far as the photographs themselves were concerned, the Judge found that they were taken covertly by a photographer concealed in a car some distance away.
The Judge’s findings
- Morland J. held that, in order to establish her claim in breach of confidentiality, Miss 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.
- As to the first requirement, the Judge applied two tests. The first was derived from the judgment of Gleeson CJ sitting in the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd  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.
- The second test applied by the Judge was that suggested by Lord Woolf CJ, when giving the judgment of the Court in A v B  EWCA Civ 337;  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.
- As to the second requirement, the Judge held:
“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 Naomi Campbell’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 making this finding the Judge rejected a submission advanced by Mr Desmond Browne QC for the Appellants that this requirement could not be satisfied unless the Appellants acted dishonestly in publishing the information.
- As to the third requirement, the Judge held:
“In my judgment clearly the publication of information about details of her therapy in regularly attending meetings of Narcotics Anonymous was to Miss Naomi Campbell’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.”
- The Judge then proceeded to cite at length from the judgment of Keene LJ in Douglas v Hello! Ltd  1 QB 967, which he held supported his conclusions.
- The next passage of the judgment was headed ‘The Application and Inter Relation of Articles 8 and 10 of the European Convention of Human Rights and Section 12(4) of the Human Rights Act 1998 and the Press Complaints Code of Practice’. The Judge had held that Miss 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.
- The Judge cited at length from the judgment of Lord Woolf in A 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 Miss Campbell 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.”
- The Judge considered at some length the extent to which Miss 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 Naomi Campbell 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 Naomi Campbell is entitled to the remedy of damages and/or for compensation.”
- The issues that we have to determine have been significantly reduced by concessions made on behalf of both parties.
- Morland J. recorded at the outset of his judgment the concession that Mr Andrew Caldecott, QC, on behalf of Miss 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  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.
- At the start of his submissions, Mr Caldecott sought to explain the distinction between infringement of privacy as a free-standing tort and infringement of privacy as a species of breach of confidence. The former occurred where there was intrusion into privacy which did not involve the disclosure of private facts; the latter involved the misuse or disclosure of private or personal information. The State of California had recognised the two distinct torts. Mr Caldecott was not seeking to establish that the former tort was recognised at English law.
- These submissions raised the question of the relevance of the taking and publication of the photographs. Mr Caldecott explained that the relevance of the photographs was that they conveyed information. He relied on the statement of Keene LJ in Douglas 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.
- It did not seem to us that the comparison with the Douglas wedding was apt. The photographs published by the Mirror were of a street scene. They did not convey any information that was confidential. That information was conveyed by the captions to the photographs and the articles in which they featured. We suggested to Mr Caldecott that the photographs exemplified the distinction between the two torts that he had identified. Without the caption the photographs were invasive, but did not convey confidential information. Mr Caldecott accepted that had the photographs been captioned ‘Miss 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.
- In some jurisdictions it is an actionable wrong to publish a photograph of a person taken without consent – see Markesinis and Unberath – the German Law of Torts 4th Ed. at pp.75 and 445 and Dalloz 101 Ed. of the French Code Civil, notes at paragraph 15 on Article 9 of the Code. Mr Caldecott has expressly abstained from pursuing a case that English law should recognise such a right of privacy. In these circumstances we consider that the publication of the photographs adds little to Miss 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.
- Advancing her claim as a conventional claim for breach of confidentiality, Miss 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.”
- In argument below, Mr Caldecott also made it plain that no complaint was made as to the publication of the bald fact that Miss 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.
- Mr Browne, for his part, accepted before us that the publications, as a whole, disclosed confidential information. In the course of his submissions he said:
“…….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.…”
- When opening his case, Mr Browne informed us that we would not be required to resolve the differences, if any, between the 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.
- The basis for these conclusions of the Judge included the guidance that Lord Woolf had given in A 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.”
- We consider that those of Morland J’s conclusions that we have summarised above are consistent with Lord Woolf’s guidance. We wish, however, to make some brief observations about this, because we believe that it has been misunderstood by some. When Lord Woolf spoke of the public having ‘an understandable and so a legitimate interest in being told’ information, even including trivial facts, about a public figure, he was not speaking of private facts which a fair-minded person would consider it offensive to disclose. That is clear from his subsequent commendation of the guidance on striking a balance between Article 8 and Article 10 rights provided by the Council of Europe Resolution 1165 of 1998.
- For our part we would observe that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media. We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.
- The Human Rights Act has had a significant impact on the law of confidentiality. On the one hand, when considering what information is confidential the courts must have regard to the Article 8 right to respect for private and family life. On the other hand they must have regard to the importance of freedom of expression, particularly where it is the media that seeks to exercise this freedom. The Strasbourg Court has repeatedly recognised that freedom of the media is a bastion of any democratic society and s.12(4) of the Human Rights Act reflects the same appreciation.
- The courts are in the process of identifying, on a case by case basis, the principles by which the law of confidentiality must accommodate the Article 8 and the Article 10 rights. One principle, which has been recognised by the parties in this case, is that, where a public figure chooses to make untrue pronouncements about his or her private life, the press will normally be entitled to put the record straight.
- We turn to consider the issues which remain for determination on this part of the appeal.
- Morland J held that the details about Miss 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.
- Mr Caldecott challenged each of these propositions. Whether the propositions are valid are the issues that arise for determination on this part of the appeal.
Was the information confidential?
- Some categories of information are well recognised as confidential. These include details of a medical condition or its treatment. A sentence in the judgment suggests that Morland J. may so have categorised the information in this case. He remarked at paragraph 40:
“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.”
- We do not consider that the information that Miss 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.”
- The test that Morland J. held was satisfied was that in the last sentence. Mr Caldecott was prepared to accept the 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.
- Morland J. remarked that he had been greatly assisted by certain passages in the judgments in A.G. v Guardian Newspapers  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.
- Mr Caldecott’s other cavil was at the qualification of the adjective ‘offensive’ by the adverb ‘highly’. We doubt whether the distinction between what is ‘offensive’ and what is ‘highly offensive’ is 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.
- Mr Morgan was plainly indignant that complaint should be made of the additional details that the Appellants published to embellish the story that Miss 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.
- Given that it was legitimate for the appellants to publish the fact that Miss 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.
- We do not consider that a reasonable person of ordinary sensibilities, on reading that Miss 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.
- Miss 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.
- In summary, it is not obvious to us that the peripheral disclosure of Miss 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.
- This conclusion is strengthened by the point made by Mr Browne that some of the additional information of which complaint was made was inaccurate. Morland J. referred to these inaccuracies as ‘errors of detail’ and described as absurd Mr Browne’s suggestion that this robbed the information of confidentiality. It seems to us that the inaccuracies related to a substantial proportion of the peripheral information that was given about Miss 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.
- In summary, we differ from the Judge in that we have concluded that the publication of information of which Miss 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
- Mr Browne advanced a sophisticated argument in which he drew an analogy between the reliance on public interest to justify publication of confidential material and the defence of qualified privilege to a claim for defamation. He sought to draw support for this analogy from the decision of the Appellate Division of the Supreme Court of South Africa in Jansen Van Vuuren v Kruger  (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.
- The object of this analogy was to enable Mr Browne to rely on the latitude that is given to a defendant on an occasion of qualified privilege to publish matter peripheral to that which is necessary to protect the interest or discharge the duty which is the foundation of the privilege. He cited the judgment of Hirst LJ in Watts v Times Newspapers  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’.
- We do not 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  2AC 127 and Loutchansky v The Times  1 AER 652,  2 WLR 640. We do not believe that the same test of public interest applies to justify publication in these two very different torts.
- We take a more straight-forward 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.
- In respect of this issue, Mr Browne referred us to the decision of the Strasbourg Court in Fressoz and Roire v France  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.”
- In our judgment, the information published by the appellants was justified in order to provide a factual account of Miss 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.
- It follows that, on this issue also, the appellants succeed.
- Where a third party receives information that has been disclosed by his informant in breach of confidence owed to the confider, the third party will come under a duty of confidence to the confider if he knows that the information has been obtained in breach of confidence. This principle is derived from the doctrine that it is equitable fraud in a third party knowingly to assist in a breach of trust, confidence or contract by another – see Toulson & Phipps on Confidentiality at 7-02 and the cases there cited.
- The mental element necessary to render a defendant liable as an accessory to a breach of trust has been refined by the decisions of the House of Lords in Royal Brunei Airlines v Tan  2 AC 378 and Twinsectra v Yardley  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.
- We consider that these submissions are misconceived. As Toulson & Phipps remark at 7-03, while dishonesty is a natural word to use in relation to misappropriation of trust property or misuse of confidential information of a commercially 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.
- The suggestion that complex tests of the mental state of the publisher have to be satisfied before breach of confidence can be made out in respect of publication of information which 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.
- The development of the law of confidentiality since the Human Rights Act came into force has seen information described as ‘confidential’ not where it has been confided by one person to another, but where it relates to an aspect of an individual’s private life which he does not choose to make public. We consider that the unjustifiable publication of such information would better be described as breach of privacy rather than breach of confidence.
- Although Mr Browne has not succeeded in persuading us that dishonesty is a necessary requirement before an individual can be held liable for breach of confidence in relation to publication of information about a person’s private life, he has persuaded us that the judgment given in Miss Campbell’s favour for breach of confidence must be set aside.
The Data Protection Act 1998
- The Data Protection Act 1998 (‘the Act’) regulates the processing of information about individuals. Section 13 of the Act entitles, in specified circumstances, an individual who suffers damage or distress by reason of contravention of the Act, to recover compensation. Morland J. held that Miss 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.
- The Directive was a response to the greater ease with which data can be processed and exchanged as a result of advances in information technology. Foremost among its aims is the protection of individuals against prejudice as a consequence of the processing of their personal data, including invasion of their privacy.
- Before Morland J. Miss 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.
- The new case advanced by the Appellants renders important some of the definitions in s.1(1) of the Act. These are:
“‘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
- The requirements of the Act are imposed on the ‘data controller’. A data controller is defined in s.1 as:
“..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.
- We shall summarise at this point only the provisions of the Act that have particular relevance to this appeal.
- The Act applies to ‘personal data’. Special provision is made for ‘sensitive personal data’.
- Schedule 1 to the Act sets out the principles which must be applied to the processing of personal data. The first principle requires that personal data shall be processed fairly and lawfully and only provided that certain conditions are met. In the case of all data, one of the conditions in Schedule 2 must be met. In the case of sensitive personal data, one of the conditions in Schedule 3 must also be met.
- Part II of Schedule 1 deals with interpretation of the principles. It makes the following provision in relation to the first principle:
“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.”
- Schedule 2 provides as follows:
“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 a view 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 the vital 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.”
- Schedule 3 begins with the condition that ‘the data subject has given his explicit consent to the processing of the personal data’. There is no other specific condition with which a newspaper could, in normal circumstances, be expected to comply. The Schedule ends, however, with the condition that ‘The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph’.
- The Secretary of State has made such an order – the Data Protection (Processing of Sensitive Personal Data) Order 2000. This sets out certain circumstances in which sensitive personal data may be processed. The first two sets of circumstances relate to processing in general. The third, which covers much the same ground as the first two, relates to disclosure:
“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 a view 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 remaining circumstances could not normally have any application to journalism.
- The relevant exemption is found in section 32 of the Act, and it is necessary to set this out in full:
“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 a view 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 by virtue 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 a view 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.”
- We draw attention to the fact that the word ‘publish’ appears nowhere in the Act. The word ‘publication’ appears in s.32 but nowhere else.
- By the Data Protection (Designated Codes of Practice) (No.2) Order 2000 the Secretary of State has, pursuant to subsection 3, designated a number of Codes of Practice for the purposes of s.32(3). These include the Code of Practice published by the Press Complaints Commission.
The decision of the court below
- Morland J. held that the appellants had failed to comply with the first data protection principle in the following respects:
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.
- It is not necessary to refer in greater detail to the arguments advanced by the Appellants that were rejected by the Judge in the course of reaching the findings summarised above. Suffice it to say that we agree with the Judge that, unless they fell within the s.32 exemption, the appellants were not in a position to satisfy the conditions imposed by the Act. As we have said, this has been virtually conceded on the appeal.
- The major issue before the Judge was whether the appellants could rely upon the exemption contained in s.32 of the Act. The Judge was persuaded by Mr Antony White QC, who argued this aspect of the case on behalf of Miss 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 the views 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.”
- The Judge’s conclusions were, thus, that while journalists were protected by s.32 from being prevented, by interim injunction, from proceeding with the processing of information with a view to publication, they enjoyed no special protection from claims for compensation once publication had taken place.
- Mr Richard Spearman QC, who dealt with this aspect of the appeal on behalf of the Appellants, argued compellingly both in his skeleton argument and before us that Morland J’s conclusions had surprising results. Without the consent of the data subject, a newspaper would hardly ever be entitled to publish any of the information categorised as sensitive without running the risk of having to pay compensation. Indeed, it would be difficult to establish that the conditions for processing any personal information were satisfied. If this were correct, it would follow that the Data Protection Act had created a law of privacy and achieved a fundamental enhancement of Article 8 rights, at the expense of Article 10 rights, extending into all areas of media activity, to the extent that the Act was incompatible with the Human Rights Convention.
- In answer to this unsatisfactory scenario, Mr Spearman submitted that, if the s.32 exemption did not apply to publication, this was because the Act itself had no application to the publication of newspapers.
- If this submission is correct, it must apply to the publication of any hard copy documents, created through the processing of data. It seems to us that Mr White was concerned at the Pandora’s box that had been opened as a result of the success of his submissions below. He concluded his skeleton argument in response to the Appellants’ new point with the following observation:
“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.
- Even if Mr Spearman’s new point is correct, journalists still have cause for concern if Morland J. was correct to conclude that s.32 applies only pre-publication. In the present case, Miss 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.
- Thus, this area of the case raises three important, interrelated issues:
(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?
- In interpreting the Act it is appropriate to look to the Directive for assistance. The Act should, if possible, be interpreted in a manner that is consistent with the Directive. Furthermore, because the Act has, in large measure, adopted the wording of the Directive, it is not appropriate to look for the precision in the use of language that is usually to be expected from the Parliamentary draftsman. A purposive approach to making sense of the provisions is called for.
- The preamble to the Directive runs to 72 recitals. A number of these refer to the right to privacy, of which the following is typical:
“(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;”
- The Directive, and certain sections of the Act to which we have not referred, embrace not merely the automatic processing of data, but the manual processing of data when this involves the maintenance of filing systems that satisfy certain specified criteria. Recital 27 provides:
“(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…”
- Turning to the substantive provisions of the Directive, Article 2 provides the following definition:
“(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.”
- Under the heading ‘Scope’, Article 3 provides:
“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.
- The definition of ‘processing’ in the Directive and the Act alike is 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?
- While the Act extends to certain manual filing systems, it is otherwise concerned with the automated processing of personal information. Almost all of the provisions of the Act relate to activities prior to the moment when that information is transferred to hard copies. It would conflict with the overall nature and object of the Directive and the Act to seek to apply their provisions to the acts of those who distribute and make available to the public the product of prior data processing in which they have not been concerned. Extending ‘processing’ to embrace such activities need not, however, have that result.
- The Directive and the Act define processing as ‘any operation or set of operations’. At one end of the process ‘obtaining the information’ is included, and at the other end ‘using the information’. While neither activity in itself may sensibly amount to processing, if that activity is carried on by, or at the instigation of, a ‘data controller’, as defined, and is linked to automated processing of the data, we can see no reason why the entire set of operations should not fall within the scope of the legislation. On the contrary, we consider that there are good reasons why it should.
- While an individual may reasonably find it objectionable that another should record and hold personal data about himself, the greater invasion of privacy, damage and distress is likely to be caused when that information is made public. Article 23 of the Directive provides:
“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.
- Section 13 of the Act gives effect to Article 23. It provides:
“(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 by virtue 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.
- Accordingly we conclude that, where the data controller is responsible for the publication of hard copies that reproduce data that has previously been processed by means of equipment operating automatically, the publication forms part of the processing and falls within the scope of the Act.
Does the s.32 exemption apply only up to the moment of publication?
- The opinions of commentators, the submissions of Mr White on behalf of Miss 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.”
- Morland J. considered that Mr Tugendhat’s conclusions were supported both by the terms of the Directive and by the recommendations of a working party set up pursuant to the Directive. We shall consider each in turn.
- Recital 37 to the Directive provides:
“(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.”
- This theme is picked up by Article 9 of the Directive, which provides:
“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 chapter VI 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.
- We accept that these provisions must inform the interpretation of s.32. They do not, however, suggest that exemptions will only be appropriate if their application is limited to the period prior to publication.
- The working party, set up pursuant to the Directive, made on 25 February 1997, Recommendation 1/97 “Data Protection Law and the Media”, which included the following:
“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 of violation 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.”
- This passage does indeed draw a distinction between the restriction of the data subject’s rights prior to publication and the freedom to obtain redress for infringement of rights after publication.
- Having considered the relevant background, we turn to s.32 itself. As Mr White observed, the section divides into two halves – subsections (1) (2) and (3) and subsections (4) and (5).
- It is convenient first to consider subsections (4) and (5). They are purely procedural. They provide that proceedings against a data controller are to be stayed where the data controller claims that the data is for one of the special purposes – in the instant case journalism- and with a 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.
- This procedural bar will prevent the merits of the proceedings brought against the data controller from being determined until after publication. We can readily accept that the purpose of these provisions is to prevent the restriction of freedom of expression that might otherwise result from gagging injunctions. But if it be the case that the whole of s.32 applies only during the period prior to publication, what is the purpose of sub-sections (1) to (3), to which we now turn?
- Sub-sections (1) to (3), on their face, provide widespread exemption from the duty to comply with the provisions that impose substantive obligations upon the data controller, subject only to the simple conditions that the data controller reasonably believes (i) that publication would be in the public interest and (ii) that compliance with each of the provisions is incompatible with the special purpose – in this case journalism. If these provisions apply only up to the moment of publication it is impossible to see what purpose they serve, for the data controller will be able to obtain a stay of any proceedings under the provisions of sub-sections (4) and (5) without the need to demonstrate compliance with the conditions to which the exemption in subsections (1) to (3) is subject.
- Mr White sought 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.
- Furthermore, it would seem totally illogical to exempt the data controller from the obligation, prior to publication, to comply with provisions which he reasonably believes are incompatible with journalism, but to leave him exposed to a claim for compensation under s.13 the moment that the data have been published.
- For these reasons we have reached the conclusion that, giving the provisions of the sub-sections their natural meaning and the only meaning that makes sense of them, they apply both before and after publication.
- It seems to us that there are good reasons for sub-sections (1) to (3) to mean what they say. The overall scheme of the Directive and the Act appears aimed at the processing and retention of data over a sensible period. Thus the data controller is obliged to inform the data subject that personal data about the subject have been processed and the data subject is given rights, which include applying under s.14 for the rectification, blocking, erasure or destruction of the data on specified grounds. These provisions are not appropriate for the data processing which will normally be an incident of journalism.
- This is because the definition of processing is so wide that it embraces the relatively ephemeral operations that will normally be carried out by way of the day-to-day tasks, involving the use of electronic equipment, such as the lap-top and the modern printing press, in translating information into the printed newspaper. The speed with which these operations have to be carried out if a newspaper is to publish news renders it impractical to comply with many of the data processing principles and the conditions in Schedules 2 and 3, including the requirement that the data subject has given his consent to the processing.
- Furthermore, the requirements of the Act, in the absence of s.32, would impose restrictions on the media which would radically restrict the freedom of the press. Arguably, but in individual cases the argument would be likely to be intense, condition 6(1) of Schedule 2 might enable the lawful processing of personal data that was not sensitive, but the requirement to satisfy a condition in Schedule 3 would effectively preclude publication of any sensitive personal data, for the result would be a string of claims for distress under s.13. There would be no answer to these claims, even if the publication in question had manifestly been in the public interest. The facts of this case provide an illustration of this, for it seems to us that Miss 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.
- It was common ground between the parties that s.32 was ambiguous and that it was, accordingly, legitimate to refer to Hansard in an attempt to resolve the ambiguity. We observe that this exercise lends support to the interpretation of s.32 for which the Appellants contend. Thus, on 2 February 1998, in moving the second reading of the Data Protection Bill, Lord Williams of Mostyn at paragraph 442 had this to say about what was to become s.32 of the Act:
“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 a view 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’.
- Reference to the subsequent discussion in Standing Committee on 21 May 1998 discloses separate consideration of sub-sections (1) to (3) and sub-sections (4) and (5). In the course of discussion, Mr George Howarth, Parliamentary Under-Secretary of State for the Home Department had this to say about the earlier sub-sections:
“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.
- For our part, however, we do not find it necessary or appropriate to rely on this material in reaching our conclusions. Resort to parliamentary material under the principle of Pepper v Hart  AC 593 should be a last resort - see the comments of Lord Hoffmann in Robinson v Secretary of State for Northern Ireland and Others  UKHL 32 at paragraph 40.
- For the reasons we have given we have concluded that Morland J. erred in holding that the first three sub-sections of s.32 apply only to the period before publication. They are of general application.
Does the s.32 exemption apply to publication?
- Because the exemption provided by s.32(1) depends upon the processing being undertaken with a 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.
- Under s.32(1) it is the data which is exempt from the provisions of the Act specified in sub-section (2). The Act only applies in relation to data. If, as we have held, the Act applies to publication, as part of the processing operation, it does so because the information published remains ‘data’, as defined by the Act. Where, by reason of s.32 the data becomes exempt as a result of the reasonable belief of the journalist that the publication will be in the public interest, the data remains subject to that exemption thereafter.
- It follows that, contrary to the finding of Morland J., the appellants were entitled to invoke the provisions of s.32 in answer to Miss Campbell’s claim.
Does the s.32 exemption apply on the facts of this case?
- This question did not arise on Morland J.’s interpretation of s.32 and he did not deal with it. Before us the Appellants’ submissions were succinct. S.32(1)(a) was plainly satisfied. S.32(1)(b) was also satisfied. Morland J. had accepted as truthful the following passage in the witness statement of Mr Piers Morgan, the Editor of the Mirror:
“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 Ms Campbell 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 Naomi Campbell’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.”
- As to s.32(1)(c) the only condition of relevance was the obtaining of the consent, or the explicit consent, of Miss 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.
- For Miss 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.
- Mr White had a further point. Paragraph 3(ii) of the Press Complaints Commission Code of Practice provides that:
“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.
- As to s.32(1)(c) Mr White submitted that there had been no necessity to publish the details of Miss 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.
- We have held earlier in this judgment that the details of Miss 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.
- For these reasons we find that there was no infringement by the Appellants of the Act.
- Our findings thus far make academic the question of whether the Judge was justified in awarding aggravated damages. This award was based on the articles published by the appellants on 7 and 8 February 2001. The Judge found that these went beyond legitimate criticism of Miss 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.
- For the reasons that we have given, this appeal is allowed.
Order: Appeal allowed with costs here and below.
Appellant to receive 80% of the costs of the appeal.
Respondent to pay £100,000 on account of costs within 28 days.
Leave to appeal to the House of Lords refused.
Leave to cross-appeal to the House of Lords refused.