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Cite as: [2002] EWHC 499 (QB)

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Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB) (27th March, 2002)

Neutral Citation Number: [2002] EWHC 499 (QB)
Case No: 2001 Claim no. 0100495

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
27th March 2002

B e f o r e :

THE HONOURABLE MR JUSTICE MORLAND
____________________

Between:
NAOMI CAMPBELL
Claimant
- and -

MIRROR GROUP NEWSPAPERS
Defendant

____________________

Mr Andrew Caldecott Q.C. and Mr Antony White Q.C. (instructed by Schilling & Lom ) for the Claimant
Mr Desmond Browne Q.C. Leading Mr Mark Warby and Miss Anna Coppola (instructed by MGN Ltd) for the Defendant
Hearing dates : 11th-15th February 2002

____________________

HTML VERSION OF HANDED DOWN JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Morland :

    Judgment
    The Contentions.
  1. Miss Naomi Campbell, the internationally renowned fashion model and celebrity, seeks damages for breach of confidentiality and compensation under Section 13 of the Data Protection Act 1998 in respect of articles with accompanying photographs published by the defendants in the Mirror on Thursday 1st February 2001 and Monday 5th February 2001.
  2. She claims that as a result she suffered distress, embarrassment and anxiety which were aggravated by later publications in the Mirror and the defendant’s conduct of the trial.
  3. The articles revealed that contrary to her previous false assertions she was a drug addict and that she was attending meetings of Narcotics Anonymous to beat her addiction. Some details of those meetings were published in the Mirror together with photographs of her leaving a meeting in Chelsea.
  4. It was accepted by Mr Andrew Caldecott Q.C. on her behalf that the Mirror was entitled to publish that she was a drug addict and the fact that she was having therapy, full stop. He contended that the information that the therapy was being obtained through Narcotics Anonymous and the details of her attendance at meetings were private and confidential matters and that there was no overriding public interest justifying their publication.
  5. Mr Caldecott did not pursue the claim for damages for infringement of privacy.
  6. On behalf of the Mirror there were denials that the defendant had acted in breach of confidence, that the information published was sensitive personal data and that the defendants were in breach of any duty under the Data Protection Act.
  7. Mr Desmond Browne Q.C. for the defendant did not dispute that the claimant was entitled to damages and/or compensation including aggravated damages or compensation which are by nature compensatory assuming that she established breach of confidence and/or breach of duty under the Act against the defendants.
  8. It was pleaded on the defendant’s behalf that if and to the extent that the information published was confidential, its publication “was legitimate in that the public interest in favour of publication outweighed any public interest in the protection” of Miss Naomi Campbell’s rights of confidentiality.
  9. It was contended on the Mirror’s behalf that she was an internationally famous super model “so-well known as to be recognised immediately by appearance and name by a high proportion of the general public” and well-known for her commercial ventures and as a figurehead for charitable causes. She had not only been “for many years the subject of extensive media attention and coverage relating to her private and personal life, activities and conduct” but also she had courted such attention and coverage including voluntarily disclosing otherwise inaccessible details about her private and personal life and feelings. Although she had discussed with the media that she had undergone therapy for behavioural problems and anger management, she had falsely and publicly asserted that she had not fallen prey to drug abuse thereby misleading the public.
  10. The Articles Complained of
    Thursday 1st February 2001.

  11. 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 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:-
  12. “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”
  13. 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 leaving a Narcotics Anonymous meeting although the caption below erroneously 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. Mr Doran did not give evidence. The faces of at least two people are pixillated. Thus their anonymity is preserved and their possible drug addiction not revealed.
  14. The article which addressed the story sympathetically as was intended and promised included the following passages:-
  15. “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.”
  16. These excerpts acknowledge the seriousness of Miss Naomi Campbell’s commitment to therapy but the fragility of her state of recovery. They also acknowledge as the photographs do her attendance at therapy sessions with “a low key entrance” as an ordinary private person. The article states mistakenly that she had been going to NA meetings for the last three months. She had been going to NA described as “gruelling” for about two years in the U.K. and abroad: a fact never before revealed in the media: an indication of the private nature of her therapy.
  17. The Genesis of the 1st February Articles.
  18. In my judgment Polly Graham’s source was undoubtedly either a fellow sufferer attending N.A. meetings or a member of Miss Naomi Campbell’s staff or entourage. The actual source is unknown but the journalist’s cryptic notes have been disclosed. They read “Worlds End” “2.p.m.” “Woman’s meeting tonight in Fulham” “bookshop” Earls’ Court 7.30 p.m.. “Brompton S.W.8. 7.30”.
  19. Evidence was given by Miss Carole White, the Managing Director of Premier Model Agency, Miss Naomi Campbell’s London model agent, and Mr Piers Morgan, the Editor of the Mirror, about telephone conversations during the evening of Wednesday 31st January 2001. There was a clear conflict of recollection as to what was said. Miss White impressed me as a witness and I found her evidence about the telephone conversations both honest and essentially accurate. Mr Morgan’s account of this aspect of the case I reject where it differed from Miss White’s
  20. However, I do accept as entirely genuine Mr Morgan’s explanation as to the approach to the story in the Article. In his written statement he said:-
  21. “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.”
  22. Mr Morgan said that he had written the headline on page 1, had had a hand in the choice of photographs to be published and had read every word in the two articles before publication. He said that it was after four o’clock before a firm decision was made to publish the following day. He telephoned Miss White as late as six o’clock when he had made an absolute firm decision to publish.
  23. In cross-examination he said that he did not recall the precise conversation but accepted that he told Miss White that the story had come about by a stroke of luck. He strenuously denied saying that his photographer or reporter had chanced upon Miss Naomi Campbell in the street leaving a shop, had followed her and hence discovered the story.
  24. Mr Morgan did not recall Miss White saying that it was morally wrong to publish the story but would not dispute it.
  25. Mr Caldecott put a statement in the “Guardian” of the 26th February 2001 to Mr Morgan which read:-
  26. “Morgan says that his original article was run sensitively and in co-operation with Campbell’s Elite model agency.”
  27. He accepted that there was not co-operation. When asked:-
  28. “Can we agree, at least, that the sentence is seriously misleading and seriously unfair to Miss White?”

    He said “I think it was slightly unfair”

    When asked:- Did you make any attempt to correct that statement?”

    He replied:- “No, to be honest it did not strike me as overly important.”

  29. In referring to a second telephone conversation with Miss White when she said “No comment” Mr Caldecott asked:- “Are you saying “No comment” is co-operative?” Mr Morgan replied:-
  30. “No, but I am saying conversation between us could be argued to be co-operative, so I would not see this as a particularly misleading or damaging fact”
  31. Miss White whose evidence I accept where it differs from Mr Morgan’s said in her written statement that on Wednesday 31st January 2001 at approximately 6 p.m. she received a telephone call from Mr Morgan. He told her that he was proposing to publish a photograph in the Mirror next day which showed Miss Naomi Campbell leaving Narcotics Anonymous. He said that she had been to two meetings that day and that he was intending to run a sympathetic story about Naomi facing her addiction.
  32. Miss White asked Mr Morgan whether one of his reporters had stalked Naomi. He told her that they had not. He said that it was a stroke of luck that a Mirror reporter has seen Naomi leaving a shop and had followed her to the first NA meeting and had then followed Naomi from that meeting to the second NA meeting. She said that Mr Morgan had said that he knew Naomi had said in the meeting “I am a drug addict” or something similar.
  33. Miss White said that she said to Mr Morgan that she had “No Comment” to make but that NA was a medical thing and it would be “morally wrong” to publish it.
  34. Miss White said that she spoke to Bruno Michel, Miss Campbell’s manager, who proposed that we do not make any comment and that they decided not to contact Naomi because they did not want to upset her.
  35. Miss White said that later in the evening Mr Morgan telephoned her again and she reiterated that she had no comment to make.
  36. Miss White in her oral evidence said that Mr Morgan said “it was a stroke of luck: a photographer happened to be in the road when she came out of a shop and he followed her”. Mr Morgan’s statement was untrue
  37. Before Publication of the articles of the 1st February 2001 Mr Morgan had not Miss Naomi Campbell’s consent to publication of the facts detailing her therapy by Narcotics Anonymous or of the details of her attendance at therapy sessions and had been told that such publication was morally wrong.
  38. On the 1st February 2001 the Mirror published the first article.
  39. In her written statement Miss Naomi Campbell said that on the 1st of February 2001 a friend of her mothers telephoned her and then she read the article in the presence of a friend and was outraged and upset. She said:-
  40. “of course it was distressing to be branded as a drug addict but what I found particularly unpleasant and intrusive was that the Mirror printed details of my treatment and photographs of me outside one of the counselling sessions. I felt shocked, angry, betrayed and violated by the article......I felt depressed. For the first time in a long while I doubted myself and my resolve to go on. ”
  41. 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:-
  42. “Publication of this article is 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.
  43. Notwithstanding the claimant’s Solicitor’s letter of the 1st February the Mirror published the second article complained of headlined “Pathetic” below which is a photograph with all faces pixillated except for Miss Naomi Campbell’s. Underneath was the caption:-
  44. “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”
  45. In the same edition there is an editorial under the heading “Voice of the Mirror” entitled “No Hiding Naomi” which ends with these words:-
  46. “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.”
  47. Mr Caldecott did not submit that this editorial was a subject matter of complaint. While I wholly accept that an editorial can legitimately in strong and colourful language dispute that an alleged infringement of privacy is justiciable, in my judgment the editorial misses the point. It is not disputed that the Mirror was entitled to reveal, and to reveal in strong terms, that Miss Naomi Campbell was a drug addict despite her previous denials and was receiving therapy. The essential question is whether even if a public figure which includes an international celebrity, such as Miss Naomi Campbell, courts and expects media exposure, she is left with a residual area of privacy which the court should protect if its revelation would amount to a breach of confidentiality.
  48. On page 10 of the same edition there are further columns entitled “A wait off our minds” in which it is stated:
  49. “For the past 3 months she has been attending Narcotics Anonymous meetings to help her fight her addiction to drink and drugs.”
    Breach of Confidentiality.
  50. In my judgment to succeed in her claim for breach of confidentiality Miss Naomi Campbell must establish three things.
  51. First that the details given by the publications complained of about her attendance at Narcotics Anonymous meetings have the necessary quality of confidence about them
  52. Secondly that those details must have been imparted in circumstances importing an obligation of confidence.
  53. Thirdly that the publication of the details must be to her detriment.
  54. 1. In my judgment the details of Miss Naomi Campbell’s attendance at Narcotics Anonymous do have the necessary quality of confidence about them. They bear the badge or mark of confidentiality. 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. They were obtained surreptitiously assisted by covert photography when Miss Campbell was engaged deliberately “low key” and drably dressed in the private activity of therapy to advance her recovery from drug addiction.

    To echo the words of Gleeson C.J. in Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd [2001] H.C.A. 63 at paragraph 42 information relating to Miss Naomi Campbell’s therapy for drug addiction giving details that it was by regular attendance at Narcotics Anonymous meetings is in my judgment easily identifiable as private and disclosure of that information would be highly offensive to a reasonable person of ordinary sensibilities.

    Or to use the guideline test given by Lord Woolf C.J. in A.v.B. (C.A. 11th March 2002) at paragraph 11(vii) it is obvious in my judgment that there existed a private interest worthy of protection.

    2. 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.

    I do not accept Mr Desmond Browne’s submission that the claimant must show that the defendants on receiving the information were dishonest in publishing what they did. At one stage Mr Browne seemed to be saying that if subjectively Mr Morgan honestly believed that he was entitled to publish the information no duty of and no breach of confidentiality arose. In my judgment it is for the court viewing the circumstances objectively to determine whether the defendants were clothed in conscience with the duty of confidentiality.

    3. 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.

    In my judgment these conclusions are consistent with what Keene L.J. said in Douglas v. Hello! Ltd [2001] QB 967 at page 1011-2:-

    Breach of confidence
    164. It is this which has formed the main plank of the claimants’ case. The claim is put in terms of breach of confidence in the particulars of claim, but it was said in argument by Mr Tugendhat that the case has more to do with privacy than with confidentiality.
    165. It is clear that there is no watertight division between the two concepts. Duchess of Argyll v Duke of Argyll [1967] Ch 302 was a classic case where the concept of confidentiality was applied so as, in effect, to protect the privacy of communications between a husband and wife. Moreover, breach of confidence is a developing area of the law, the boundaries of which are not immutable but may change to reflect changes in society, technology and business practice. I reject without hesitation the submission by Mr Carr for the defendants that it cannot encompass photographs of an event. It is said that those photographs in the present case did not convey any information which had the quality of confidence, because the guests were not prevented from imparting the same information subsequently, whether in words, by drawings based on recollection or any other means. This argument is unsustainable. The photographs conveyed to the public information not otherwise truly obtainable, that is to say, what the event and its participants looked like. It is said that a picture is worth a thousand words. Were that not so, there would not be a market for magazines like “Hello!” and “OK!” The same result is not obtainable through the medium of words alone, nor by recollected drawings with their inevitable inaccuracy. There is no reason why these photographs inherently could not be the subject of a breach of confidence.
    166. Since the coming into force of the Human Rights Act 1998, the courts as a public authority cannot act in a way which is incompatible with a Convention right: section 6(1). That arguably includes their activity in interpreting and developing the common law, even where no public authority is a party to the litigation. Whether this extends to creating a new cause of action between private persons and bodies is more controversial, since to do so would appear to circumvent the restrictions on proceedings contained in section 7(1) of the Act and on remedies in section 8(1). But it is unnecessary to determine that issue in these proceedings, where reliance is placed on breach of confidence, an established cause of action, the scope of which may now need to be approached in the light of the obligation on this court arising under section 6(1) of the Act. Already before the coming into force of the Act there have been persuasive dicta in Hellewell v. Chief Constable of Derbyshire [1995] 1 WLR 804, 807 and Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281 cited by Sedley LJ in his judgment in these proceedings, to the effect that a pre-existing confidential relationship between the parties is not required for a breach of confidence suit. The nature of the subject matter or the circumstances of the defendant’s activities may suffice in some instances to give rise to liability for breach of confidence. That approach must now be informed by the jurisprudence of the Convention in respect of article 8. Whether the resulting liability I described as being for breach of confidence or for breach of a right to privacy may be little more than deciding what label is to be attached to the cause of action, but there would seem to be merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned.
    167. Because of these developments in the common law relating to confidence and the apparent obligation on English courts now to take account of the right to respect for private and family life under article 8 when interpreting the common law, it seems unlikely that Kaye v. Robertson [1991] FSR 62, which held that there was no actionable right of privacy in English Law, would be decided the same way on that aspect today. It is noteworthy that no claim for breach of confidence was mounted in that case, and that Duchess of Argyll v. Duke of Argyll [1967] Ch 602 and Attorney General v. Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 do not seem to have been cited to the court. In the latter decision the House of Lords had made it clear, that a duty of confidence could arise from the circumstances in which the information was obtained, so that the recipient was to be precluded from disclosing it to others. Consequently if the present case concerned a truly private occasion, where the persons involved made it clear that they intended it to remain private and undisclosed to the world, then I might well have concluded that in the current state of English law the claimants were likely to succeed at any eventual trial.
    168. But any consideration of article 8 rights must reflect the Convention jurisprudence which acknowledges different degrees of privacy. The European Court of Human Rights ruled in Dudgeon v United Kingdom (1981) 4 EHRR 149 that the more intimate the aspect of private life which is being interfered with, the more serious must be the reasons for interference before the latter can be legitimate: see p. 165, para 52. Personal sexuality, as in that case, is an extremely intimate aspect of a person’s private life. A purely private wedding will have a lesser but still significant degree of privacy warranting protection, though subject to the considerations set out in article 8(2). But if persons choose to lessen the degree of privacy attaching to an otherwise private occasion, then the balance to be struck between their rights and other considerations is likely to be affected.”
    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.
  55. In A v. B. Lord Woolf C.J. in giving the judgment of the Court of Appeal authoritatively set out the principles to be applied. In my judgment the factual differences between A’s claim and this claim do not render inapplicable those principles to this claim.
  56. A was seeking pre-publication interim relief which if granted would have stopped freedom of expression. This is a claim post-publication for damages which may be regarded as equitable compensation, for its jurisprudential basis see Chapter II of Toulson on “Confidentiality”. However both claims can be regarded as equitable derivatives. It should not be over-looked that awards of damages and costs against Newspapers in respect of confidential information could generally impinge upon and have “chilling effect” upon freedom of expression.
  57. The following passages in the judgment of Lord Woolf C.J. must govern my approach to the facts of this case.
  58. In paragraphs 4 and 5 he said:-
  59. “.....under section 6 of the 1998 Act, the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles
    5. The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen”
  60. In paragraph 6 he said:-
  61. “6. The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account”
  62. In paragraph 11(iv) he said:-
  63. “...Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified”
  64. In paragraph 11 (x) he said:-
  65. “If there is an intrusion in a situation were a person can reasonable expect his privacy to be respected then that intrusion will be capable of giving rise to a liability in action for breach of confidence unless the intrusion can be justified”
  66. In paragraph 11 (xii) he said:-
  67. “xii. 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 or her 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 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 same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 116 5 of 1998”
  68. In paragraph 11 (xiii) he said:-
  69. “In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others.”
  70. As the result of the Court of Appeal’s judgment in A.v.B. it is not necessary for me to address the extensive arguments on law advanced by Mr Caldecott and Mr Browne based upon four large lever arch files from the defendants and three from the claimants with additional authorities added during oral argument. I also received and have considered further written submissions from Mr Browne and Mr Caldecott following the judgment of the Court of Appeal in A. v. B and H .v Associated Newspapers (27th February 2002).
  71. 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).
  72. 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.
  73. I should also add that I am greatly assisted by the passages in the judgments in A &G .v. Guardian Newspapers [1990] 1 AC 109
  74. “per Bingham L.J. p.215 and 216.
    per Lord Griffiths p.268 to 270.
    per Lord Goff p.281 and 282”
    Miss Naomi Campbell and the Media.
  75. Inevitably a top fashion model of international renown will be the subject of media interest and publication. That interest and publication will be greatly increased if she has a colourful temperament and private life. This will be especially so if as in the case of Miss Naomi Campbell she exploits commercially her celebrity status by ancillary activities in connection with her enterprises in restaurants, jeans and fragrances. In such circumstances she can expect and to a degree, I would assume, welcome some media attention and intrusion when she is engaged in public promotions and appearances.
  76. Miss Naomi Campbell has frequently discussed with journalists and given interviews to the press or on television about aspects of her private life and behaviour when she should have known that her revelations would be published world-wide.
  77. She has discussed her men friends and her relationships with them. However, it is greatly to her credit that they have not been kiss and tell revelations giving details of sexual activity. Nor has she spoken disparagingly or critically of her former men friends.
  78. She has publicly acknowledged that she has had problems of behavioural unpredictability and anger control which has required therapy. She admitted in evidence that she was notorious for tantrums.
  79. However, she did not reveal that she was a drug addict and had been for some years a drug addict requiring and receiving therapy.
  80. Indeed she lied about her drug addiction putting forward in interviews with the media a positively false case that unlike many models she had managed to avoid drugs.
  81. For example in June 1997 when she was rushed to hospital in Gran Canaria following an alleged drug overdose she said in an exclusive interview with the Daily Telegraph at a Paris studio where she was working on a campaign to launch her own range of jeans “I didn’t take drugs”. In relation to the same incident she said when interviewed by Paris Match “I never take stimulants or tranquillisers”.
  82. I am satisfied that she lied to the interviewers when making these denials and that her assertions, persisted in by her when giving evidence before me, that her rush to hospital was caused by an allergic reaction to an antibiotic, were deliberate lies.
  83. In June 2000 she was interviewed by Barbara Walters for American Television. The following excerpts from the transcript give the flavour of the interview.
  84. “Naomi, I have never, ever started an interview this way, but you know that people call you a bitch
    Ms CAMPBELL: Yeah
    WALTERS: and you don’t mind?
    Ms CAMPBELL: No, I do mind, I think that, for me, a woman that’s in control of her work or makes decisions or is very opinionated is called a bitch. I think a man when he is like that is called nothing. It’s fine, But I mean, being a bitch, if that’s what people want to think of me as, has protected me in so many ways.
    WALTERS: Tell me how.
    Ms CAMPBELL: I’ve never had any of that stuff we hear of the young girls and guys ..(unintelligible)...giving them drugs or, you know, I never had the sleazy side of what people think there is a in modelling. I never had that. I guess I would put on a look, “Don’t you come near me”.
    WALTERS: Do you deliberately try to be controversial?
    Ms CAMPBELL: No. But I go on my instinct.
    WALTERS: But if someone said, “Naomi Campbell, she’s so sweet, she’s so nice”
    Ms CAMPBELL: No, I don’t want to be known as sweet, nice girl, I find sweet and nice a little boring.
    WALTERS (vo): Naomi Campbell grew up on the tough streets of South London. Before she was even born, her father left and her mother often away worked tirelessly to put her daughter in prestigious stage school to study singing drama and ballet. It was she says a very lonely and anxious time.
    Ms CAMPBELL: there’s a lot of issues I have from childhood.
    WALTERS: Tell me about those.
    Ms CAMPBELL: Well, for instance, not knowing-- not knowing your father, not seeing you mother. That brings up a lot of--that manifests a lot of feelings.
    WALTERS: Anger?
    Ms CAMPBELL: Absolutely. Anger but I think that’s normal. And I mean I’ve not always displayed my anger in the appropriate time. It’s always been the inappropriate time. But it’s a manifestation of a deeper issue, I think, anger. And that for me, I think, is based on insecurity, self-esteem and loneliness
    You pose very often in the nude. I have seen some beautiful pictures of you in the nude. You just--do you have any inhibitions?
    Ms CAMPBELL: Well, I...
    WALTERS: Why did you shudder when I said that?
    Ms CAMPBELL: No one would believe it because I posed for Playboy recently, But I do, I do have inhibitions, and that took me eight years to say yes to Playboy, I mean I don’t think being in the nude is vulgar at all if it’s done in an artful way........
    WALTERS: But you are very often late. What’s that about? Is that insecurity? Is that a power trip? What is it?
    Ms CAMPBELL: It’s just a fault and a defect that has to be put right. And I am trying to put it right. It’s something that I think is very bad, ill-mannered, and it’s not something I’m proud of. But as I said, I am progressing and putting it right.”
  85. After referring to an assault on a woman who photographed her on a plane and an assault with a phone on an assistant to which she pleaded guilty in Canada.
  86. “Then you sent a month in a rehab clinic-- is that what I have read? A clinic that tried to help you control your anger?
    Ms CAMPBELL: I went away to a place that was to take care of myself not just focusing on anger. At the time, I had a great public life of what it may seem, I have got everything a girl could want. I travel the world. I’m very fortunate. Yes. I know I’m very fortunate. But the worst thing about all of that is you can still be unhappy. And I was really unhappy. And I needed to go away. And it was a big fearful thing for me to take the time off work and think, “God I’m missing something.” And--but I did that because I realised the people that really loved me I was going to lose if I didn’t find out what was making me do the things I did.
    WALTERS: Have you found out now? Can you control the anger?
    Ms CAMPBELL: I’m progressing with my anger. As I know that it now comes from a deeper issue.”
  87. This is a reference to a month’s course of therapy and counselling at the Cottonwood de Tucson Centre Arizona which I am satisfied was aimed at dealing not only with behavioural and anger problems but also drug abuse as she admitted in her oral evidence.
  88. On very many occasions over the years her public and personal private life have been the subject of publication in the media.
  89. 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.
  90. 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).
  91. 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
  92. 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.
  93. 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 the 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 articles 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.
  94. The Data Protection Act 1998.
  95. The Act has not been the subject of judicial interpretation except for a passing reference by Brooke L.J. in Douglas v. Hello! Ltd [2001] QB 967 who said at p.983:-
  96. “55. Needless to say, following Lord Fraser’s speech in NWL Ltd v. Woods [1979] 1 WLR 1294, if there is a very strong likelihood that the claimant will establish that an article 10(2) justification will succeed at trial this will represent a powerful reason why the court should exercise its discretion to grant an interim injunction to restrain publication. In the present case “Hello!” wished to publish in this country over half a million copies of its issue 639 which it had imported from its printers in Spain. In another case, however, a newspaper might wish to publish a photograph, taken on a private occasion, which it possessed in this country in digital form. In such a case it might run into serious difficulties
    56. These difficulties would arise out of the provisions of the Data Protection Act 1998, This statute was enacted, in part, to implement Council Directive 95/46/EC, which was self-avowedly concerned with the protection of an individual’s Convention rights to privacy: see paragraphs (2), (10), (11) and (17) of the preamble to the Directive and article 9 of the Directive itself. It follows that unless the newspaper asserted a section 32(1)(b) justification (viz that it reasonably believed that, having regard in particular to the special importance of the public interest in freedom of expressions, publication would be in the public interest), a claimant who could show that the photograph had been taken of him on some private occasion without his consent would be able to satisfy a court that it was highly probable that an article 10(2) justification would succeed at trial: see the Data Protection Act 1998, section 4 and Schedule 1, Part 1, paragraph 1(a) and Schedule 2. Section 13 of this Act, incidentally, grants an individual a statutory right to compensation for damage (including distress, in certain specified circumstances) against a “data controller” who contravenes any of the requirements of the Act. This entitlement is subject to any of the defences the Act may provide.”

  97. Mr Browne for the defendant likened the Act to a thicket. I hope that I have been able to thread a path through it. If I have lost my way, it will not be due to Mr Antony White Q.C. whose submissions for the claimant in respect of this part of her case were admirably lucid and educative.
  98. The genesis of the Act is “Directive 95/46 EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data”, although the United Kingdom had the Data Protection Act 1984.
  99. The Directive has some 72 recitals of which numbers 2,3,7,8,10,11,33 specifically refer to the right of privacy or the fundamental rights of individuals and numbers 17 and 37 to journalism. Article 1 reads:-
  100. “Article 1. Objective of the Directive.
    1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data
    Article 9 reads:-
    Processing 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.”
  101. Articles 29 and 30 provided for the setting up of a working party which on the 25th February 1997 made Recommendation 1/97 “Data Protection Law and the Media”. The working party noted that United Kingdom legislation did “not contain any express exemption from the application of its provisions to the media”.
  102. It is instructive to set out parts of the Recommendation:-
  103. “2.1 Freedom of expression and the protection of privacy
    Article 10 of the European Convention for the protection of Human Rights and fundamental freedoms (ECHR) establishes that:
    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and to impart information and ideas without interference by public authority and regardless of frontiers.[..]
    This right is one of the fundamental human rights deriving from the constitutional traditions common to the Member States and is one of the most characteristic elements of the legal heritage of democratic societies. Historically it was one of the first human rights to be demanded and indeed guaranteed in law. The press in particular received special legal and constitutional guarantees, in particular against prior censorship.
    The right to privacy is similarly guaranteed by article 8 of the EHCR. Data protection comes within the scope of the protection of private life guaranteed under this article. Derogations to the principles of data protection and to article 8 of the EHCR must be in accordance with the law and must respect the principle of proportionality. Equally limits to freedom of expression, such as the ones that might derive from the application of data protection principles, must also be in accordance with the law and respect the principle of proportionality.
    However the two fundamental rights must not be seen as inherently conflicting.
    One important element that emerges from the current legislative situation in the Member States is that the media, or at least the press, are bound to respect certain rules which although not part of data protection legislation in a proper sense contribute to the protection of the privacy of individuals.”
  104. The conclusions of the Recommendation included:-
  105. “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.”
  106. Mr Browne’s main submission was that Section 32 of the 1998 Act provided a defence to the claim under the Act whereas Mr White submitted that it did no such thing and that Mr Browne’s submission arose from a misinterpretation and misunderstanding of the Act. Mr White rightly submitted that to give a proper interpretation to the domestic Act I must look to the directive and the ancillary Recommendation of the working party.
  107. There was no disagreement with regard to certain issues in relation to the claim under the Act.
  108. Under Section 1(1) the claimant was a “data subject,” the information including the details and photographs that the claimant was receiving therapy at Narcotics Anonymous was “personal data”, the defendant was the “data controller,” the obtaining preparation and publication of the claimant’s personal data was “processing”.
  109. Under Section 3 such processing was for “the special purposes” of journalism.
  110. The claimant did not consent to the processing.
  111. The matters in issue were fivefold:-
  112. 1. Was the personal data “sensitive personal data” within Section 2?
    2 Was the defendant exempted from liability under Section 32?
    3. If the defendant is not exempt under Section 32, did the defendant contravene the first data protection principle under Section 4(4)?
    4. If the defendant contravened the first data principle, has the defendant established a Section 13(3) defence?
    5. Compensation.
    Was the Personal Data “Sensitive Personal Data within Section 2?
  113. Section 2 states:-
  114. “In this Act “sensitive personal data” means personal data consisting of information as to -
    (a) The racial or ethnic origin of the data subject,....
    (e) his physical or mental health or condition.”
  115. In my judgment the contention, that the published photographs of the claimant are sensitive personal data because they consist of information as to her racial or ethnic origin, has no materiality or relevance to the circumstances of this case. The claimant is proud to be a leading black fashion model and it is part of her life style and profession to be photographed as a black woman. She has suffered no damage or distress because the photographs disclose that she is black.
  116. However, it should not be understood that I am ruling that images whether photographic or otherwise that disclose whether from physical characteristic or dress racial or ethnic origins cannot amount to sensitive personal data.
  117. In my judgment the information as to the nature of and details of the therapy that the claimant was receiving at Narcotics Anonymous including the photographs with captions was clearly information as to her physical or mental health or condition, that is her drug addiction and therefore “sensitive personal data”.
  118. Was the Defendant Exempted from Liability under Section 32?
  119. Section 4 reads:-
  120. “(1) References in this Act to the data protection principles are to the principles set out in Part 1 of Schedule 1.
    (2) Those principles are to be interpreted in accordance with Part II of Schedule 1.
    (3) Schedule 2 (which applies to all personal data) and Schedule 3 (which applies only to sensitive personal data) set out conditions applying for the purposes of the first principle; and Schedule 4 sets out cases in which the eighth principle does not apply.
    (4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.”
  121. Section 27(1) reads:-
  122. “References in any of the data protection principles or any provision of Parts II and III to personal data or to the processing of personal data do not include references to data or processing which by virtue of this part are exempt from that principle or other provision”
  123. Section 32 reads:-
  124. “(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, literary 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.”
  125. By Statutory Instrument 2000 No. 418 a designated code under Section 32(3) is “the Code of Practice published by the Press Complaints Commission in December 1997”.
  126. Paragraph 3 of that Code reads:-
  127. Privacy
    I) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, A publication will be expected to justify intrusions into any individual’s private life without consent.
    ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.
    Note - Private places are public or private property where there is a reasonable expectation of privacy.”
  128. Mr Browne contended that Section 32 applied in this case providing a defence in relation to the publications complained of, and that the Section 32 exempted the defendant from liability for contravention of the relevant data protection principles and provisions of the Act not only pre-publication but also post publication.
  129. Mr White submitted that Section 32 had no application post publication.
  130. 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. The words that I have underlined support this interpretation. In my judgment Article 9 of the Directive was not intended to whittle down Article 8 of the Convention nor could it having regard to the message explicit in the Directive and the Working Party’s Recommendation.
  131. 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 15-0 2(c) and 15.13.
  132. Mr Tugenhat points out in a footnote at page 116 that Section 32 was introduced in the Bill at the last minute at Christmas 1997 (H.L. Debs .2 Feb 1998 Col 442)
  133. Mr Brown boldly asserted, wholly wrongly in my judgment, that the Act was “offensive to Article 10” of the Convention “because instead of starting from the pre-eminent premise of freedom of expression, one starts with a whole series of restrictions which then in order to justify not being in breach of the Act, one has to demonstrate one comes within exceptional cases”. In my judgment neither Article 10 nor Article 8 has pre-eminence, the one over the other. In accordance with Article 9 of the Directive they must march in step. See Douglas v. Hello! Ltd [2001] QB 967 per Keene L.J. at p.1008 where he said:-
  134. “For my part, I do not accept that there is any need for conflict between the normal meaning to be attached to the words in section 12(3) and the Convention. The subsection does not seek to give a priority to one Convention right over another. It is simply dealing with the interlocutory stage of proceedings and with how the court is to approach matters at that stage in advance of any ultimate balance being struck between rights which may be in potential conflict. It requires the court to look at the merits of the case and not merely to apply the American Cyanamid test. Thus the court has to look ahead to the ultimate stage and to be satisfied that the scales are likely to come down in the applicant’s favour. That does not conflict with the Convention, since it is merely requiring the court to apply its mind to how one right is to be balanced, on the merits against another right, without building in additional weight on one side. In a situation such as the one postulated by Mr Tugendhat where the non-article 10 right is of fundamental importance to the individual, such as the article 2 right to life, the merits will include not merely the evidence about how great is the risk of that right being breached, but also a consideration of the gravity of the consequences for an applicant if the risk materialises. The nature of the risk is part of the merits, just as it would be at trial when the balance had to be struck. That is as relevant at the interlocutory stage as it would be at trial. But that does not require any strained interpretation of section 12(3)”
  135. In my judgment the defendant is not entitled to exemption from liability under Section 32 and that Section has no application to the claimant’s entitlement to compensation under the Act for distress caused by publication.
  136. The Defendant Being not Exempt Under Section 32, did the Defendant Contravene the First Data Protection Principle Under Section 4(4)?
  137. The first data protection principle is stated in Schedule 1 part 1:-
  138. “1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-
    (a) at least one of the conditions in Schedule 2 is met, and
    (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.”
  139. The interpretation of the first principle is given in Part II. 1(1) reads:-
  140. “In determining for the purposes of the first principle whether personal data are processed fairly, regard is to had to the method by which they are obtained”
  141. In my judgment the requirements of the first principle are cumulative. The requirements are three in number.
  142. The first requires the processing to be fair which includes the method by which the personal data was obtained to be fair. The method included the taking surreptitiously of photographs of the claimant as she left the Narcotics Anonymous meeting with other participants by a photographer sent by the defendant. This was achieved by the photographer concealing himself in a car some distance from the meeting place. Thus the claimant was unaware that she was being photographed. She had no opportunity of evading being photographed or of refusing her consent to being photographed.
  143. In R.v. Broadcasting Standards Commission ex parte B.B.C. [2001] Q.B.885 per Lord Woolf M.R. at p.898 and per Hale L.J. at p.899.
  144. “Lord Woolf M.R.
    37. Mr Pannick submits that the fact that the filming was secret does not add anything to the filming. I disagree. The fact that it is clandestine can add an additional ingredient. Both the code and the BBC’s own guidance recognise that clandestine filming is regarded as objectionable. The fact that it is secret prevents those who are being filmed from taking any action to prevent what they are doing from being filmed. In this case, it is reasonably clear that, if Dixons had been aware of the filming, they would have regarded it as objectionable. The filming was on their property and although the public were invited to the premises the invitation was not in relation to secret filming.
    Hale L.J.
    43. I accept that it is open to the BSC to hold that secret filming of an individual for potential use in broadcasting is in itself an infringement of that individual’s privacy (although it may well be warranted). Notions of what an individual might or might want to be kept “private”. “secret” or “secluded” are subjective to that individual.
    44. I also attach particular weight to the context, which is not only the secret filming without consent but also the potential use in the mass media without consent. Furthermore, we are not talking about legal rights but broadcasting standards. If there is a good reason for the infringement then it will not be unwarranted. All this seems to me to justify a wider view of the ambit of privacy than might be appropriate in some other contexts There may well be contexts in which the concepts should be limited to human beings, whose very humanity is defined by their own particular consciousness of identity and individuality, their own wishes and their feelings. But that debate is for another day ”
  145. It would also seem to be contrary to the letter and the spirit of the Code - Paragraph 3 Privacy.
  146. Furthermore the details of the claimant’s attendance at Narcotics Anonymous meetings complained of in the published article were obtained unlawfully because of my finding that they were published in breach of confidence.
  147. The conditions relevant for purposes of the first principle processing of any personal data are set out in Schedule 2 to the Act.
  148. The defendant relied on Conditions 5(d) and 6(1) which are derived from Articles 7(e) and (f) of the Directive. I share Mr White’s doubt whether those articles were intended to cover journalistic purposes which are covered by Article 9.
  149. Condition 5(d) reads:-
  150. “for the exercise of any other functions of a public nature exercised in the public interest by any person”
  151. Despite Mr Browne’s submission that a free press is in the public interest and indeed essential in a democratic society, in my judgment the commercial publication of newspapers is not the exercise of a function of a public nature within Condition 5(d)
  152. Condition 6(1) reads:-
  153. “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.”
  154. Assuming that this condition applies to the media in my judgment, while the publication of the claimant’s drug addiction and the fact that she was having therapy was necessary for the purposes of legitimate interests of the defendant, as newspaper publisher, and was not and was not an unwarranted intrusion into the claimant’s right of privacy, it was not necessary to publish the therapy details complained of. All that needed to be published in pursuit of the defendants legitimate interests were the facts of drug addiction and therapy - fullstop. The therapy details complained of were an unwarranted intrusion into the claimant’s right of privacy. On the principle of proportionality the defendant does not pass through, to use Mr White’s appropriate phrase, the condition 6(1) gateway even if the therapy details were not “sensitive personal data”.
  155. The conditions relevant for purposes of the first principle processing of sensitive personal data are set out in Schedule 3 to the Act.
  156. Condition 10 reads:-
  157. “The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.”
  158. The consequent Statutory Instrument is 2000 No 417. The defendant relies on paragraph 3(1) which reads:-
  159. “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.”
  160. In my judgment these conditions are cumulative and the defendant fails to pass through this gateway.
  161. In my judgment disclosure of details of the claimant’s therapy was not in the substantial public interest. Moreover the disclosure of that personal data was not in connection with the commission of drug offences but the claimant’s efforts to avoid committing drug offences. I accept Mr White’s argument that Paragraph 3(1)(b)(i) should be given a narrow construction so as to be consistent with Article 9 of the Directive.
  162. Also in my judgment Paragraph 3(1)(d) is not satisfied. In my judgment whether the test is satisfied must be viewed objectively. I do not accept the argument of Mr Browne that the test should be subjective. He seemed to be saying that if a newspaper editor honestly stated that he reasonably believed that the publication of the personal data would be in the public interest, then Paragraph 3(1)(d) was fulfilled on the say - so of the editor without more ado. I do not accept that proposition. It remains a puzzle why the epithet “substantial” does not appear in Paragraph 3(1)(d). It is to be noted it appears in Paragraphs 1(1)(a), 2(a) and 4(a).
  163. As none of the three cumulative first data protection principle requirements is fulfilled, there has been contravention of the Act by the defendant.
  164. Has the Defendant Established a Section 13(3) Defence?
  165. Section 13(3) reads:-
  166. “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.”
  167. In my judgment the defendant has utterly failed to establish a Section 13(3) defence. Indeed in his evidence Mr Piers Morgan made it clear that in his opinion the claimant had lost all right to privacy.
  168. Compensation.
  169. Compensation is governed by Section 13 which reads :-
  170. “(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.”
  171. In my judgment “damage” in Section 13(1) and Section 13(2)(a) means special or financial damages in contra-distinction to distress in the shape of injury to feelings.
  172. It was not disputed in this case that damages for breach of confidence and compensation under Section 13 would both cover primary and aggravated damages, that the figure under both Heads of Claim would be the same and that there could be no duplication.
  173. Damages and/or Compensation.
  174. In my judgment Miss Naomi Campbell has established that she is entitled to damages or compensation for both breach of confidentiality and under Section 13 of the Data Protection Act 1998 including aggravated damages.
  175. Miss White in her written statement of the 17th January 2002 said:-
  176. “The Mirror article on the 1st February 2001
    I saw the article when it came out. I spoke with Naomi about it who had also read it. I told her of the conversation I had had with Piers Morgan the night before. Naomi was very upset. She was adamant that someone who was trying to help themselves by seeking treatment and counselling should be able to do so privately. Naomi was very tearful and very distressed. I remember her asking “how could they do this?”. She told me that she believed that the Mirror had been following her, since she could not understand how the Mirror had known she had attended two different meetings on one day and regularly attended NA meetings
    I also recall that Naomi was upset and angry about the follow up articles and in particular the article which describes her as a “chocolate soldier”, which she felt was obviously racist, as her agent and also her friend we would regularly talk and she would frequently mention the Mirror articles and the Mirror’s general attitude towards her. Even now I can see that she is still affected by it all.”
  177. This evidence of Miss White which I accept was not challenged.
  178. In her written statement of the 17th January 2002 Miss Naomi Campbell said:-
  179. “I was very distressed to read the article in the Mirror. Someone, I think my driver, had gone out to get the papers. I recall that a friend of my mother telephoned me and then Carole White rang. Carole White told me about her conversation the night before with the Editor, Piers Morgan, when he said it was a coincidence that a photographer was present. I did not believe that it was a coincidence I was convinced at the time that the Mirror must have been following me. I read the article in the presence of a friend and I was outraged and upset. Of course it was distressing to be branded a drug addict, but what I found particularly unpleasant and intrusive, was that the Mirror printed details of my treatment and photographs of me outside one of the counselling sessions.
    I felt shocked, angry, betrayed and violated by the article. My friend who had chaired the lunch time session at World End Place two days earlier rang me as he said he was concerned the article would send me “over the edge”. A number of other friends who knew of NA or attended also rang to offer support but I felt depressed. For the first time in a long while I doubted myself and my resolve to go on.
    I felt very uncomfortable at the thought that someone close to me was disclosing private information about me to the world through the Daily Mirror. I was very worried that I did not know who this person was. I was also anxious that I would be seen to be letting down my fellow attendees and it would be damaging to them also. It undermined my confidence in being sure I could attend any NA session in this country in complete security. I felt miserable and very insecure. I didn’t know for sure whether I was being followed, whether a trusted employee had sold secrets about me or whether someone in NA had given this story to the press.
    Since the publication in the Mirror I lost my confidence in going to the meetings. It was difficult, I tried to be strong and on the day of the article, Thursday, I went to another NA session accompanied by a friend.
    By the time I returned from the NA meeting I believed that I was being followed. There was a pack of press photographers outside my flat when I arrived back home from this meeting. They had obviously been waiting for me. By then I was feeling very vulnerable as well as very angry. NA was no longer a haven for me and I now had my home under siege. I felt I was being harassed. I was panicking and worried. I did not want to leave the house any longer. I began to think NA was not worthwhile and I questioned what was the point in trying to fight the addiction if this was the reaction. I felt judged and branded. I felt myself begin to shut down and withdraw.
    After the publication of the Mirror article I never again went to a NA meeting at the World’s End centre. I did go to meetings at other centres, but in the year since the article appeared I have only attended about four NA meetings in England. I never spoke again at any meeting in London as I was too afraid. I have however attended NA meetings abroad and on some occasions I have met privately at my home with other NA attendees.”
  180. In her oral evidence amplifying her written statement in this passage she said:-
  181. “Q. Can you just tell us a little about those four meetings?
    A. Two of them were at my home......Two of them were at my home by my friend in the programme, and one of them was eight of my friends in a room in a building in Fulham, and the other one I cannot remember.
    Q. When you say they were your friends from the programme, were these people you had met before the article?
    A. These were friends of mine that I have known for four or five years that also attend the programme.
    Q. Do you still go to Narcotics Anonymous centres abroad?
    A. I go in America, Japan, Australia, Italy, France, without any problems.
    Q. How often, how regularly do you attend them abroad?
    A. Four times a week. It depends on my work. Four times a week.
    Q. Can you just briefly tell us why you go so regularly abroad but so rarely here?
    A. I have never had any problems in any of the countries I have ever been in. Australia, America. France, Italy: I just go and do my meetings and leave”
  182. When cross-examined she said:-
  183. “Now, Miss Campbell, in your witness statement you say that you were very distressed to read the article. Was not the reason for your distress that the public now knew that you had lied to them for some years and that you were or had been a drug addict.
    A. No.
    Q. that was the distressing part, was it not?
    A. No it was not.
    Q. well, let us just consider how distressed you were when you gave your--
    A. The distressed part was that I do not feel I can live in this country and walk into a NA meeting or an AA meeting without having been followed or without having to read headlines like what I had to read with the Daily Mirror.
    Q. The headline was “I am a drug addict”?
    A. Which is something I never said. I never said that.
    Q. Which is something you have never complained about and cannot complain about for reasons you know very well?
    A. I never said in those meetings that I was a drug addict so that is also a lie and I feel that I have the right to have my anonymity and everybody else in recovery does. Recovery is a healthy thing: it is not a thing to be ashamed of. You are taking care of yourself and trying to solve your solutions and your problems, and you put this in, or your client puts this in the Daily Mirror, as if it is something to be ashamed of. I had been going for a year and a half before in England and was left alone.”
  184. Following the publication of the Articles of the 1st February 2001 Miss Naomi Campbell had the services of the publicist Matthew Freud. The circumstances in which this occurred remained obscure and Mr Freud did not obtain from Miss Campbell the remuneration that he claimed, recovering £15,000 instead of £25,000.
  185. I am satisfied that Mr Freud was instrumental to arranging Miss Campbell’s interview with Mr Landesman which resulted in the Sunday Times article published on the 4th February and headlined:-
  186. “I’ve never been camera shy, but there are limits”
  187. In the article Miss Campbell is reported as saying:-
  188. “They’ve been having a go at me for years and I have put up with it.” she says. “But this time they’ve gone too far,”
    There used to be an unwritten rule that the press would leave patients alone, but that’s changed and it’s gone to a new and disgusting level”.
    When someone is having medical treatment they should have a right to privacy. This is not just about me, it’s about everyone in my situation. I’m doing this for everyone out there who needs and wants to keep their anonymity when dealing with something like over-eating, anorexia, or depression”
    “Many people I have known have had their anonymity broken and it’s just not right. Everyone should have a right to make that choice”.
    This is not about me” the next she’s saying “this is the tip of the iceberg. I’m fed up with the press”
    “I saw that piece and got upset for 5 minutes.”
  189. This last comment was the subject of cross-examination by Mr Browne.
  190. These comments have been determinative in my assessment of damages on a modest scale. I refer again later to Mr Landesman’s evidence when considering aggravated damages.
  191. Although I am satisfied that Miss Naomi Campbell has established that she has suffered a significant amount of distress and injury to feelings caused specifically by the unjustified revelation of the details of her therapy with Narcotics Anonymous, apart from that distress and injury to feelings she also suffered a significant degree of distress and injury to feelings caused by the entirely legitimate publication by the defendants of her drug addiction and the fact of therapy about which she cannot complain. In determining the extent of distress and injury to feelings for which she is entitled to compensation, I must consider her evidence with caution. She has shown herself to be over the years lacking in frankness and veracity with the media and manipulative and selective in what she has chosen to reveal about herself. I am satisfied that she lied on oath about the reasons for her rushed admission to hospital in Gran Canaria and I have doubts about the accuracy of her accounts of the assaults on her assistants and her dealings with Mr Matthew Freud, the publicist. Nevertheless I am satisfied that she genuinely suffered distress and injury to feelings caused by the unjustified publication and disclosure of details of her therapy in the two articles of the 1st and 5th February 2002 complained of. I assess damages or compensation in the sum of £2500.
  192. Is she additionally entitled to aggravated damages?
  193. Aggravated Damages.
  194. It is for the claimant to establish that she has suffered increased distress and injury to feelings caused by the conduct of the defendants after the publication of the articles complained of. Any damages awarded by way of aggravation can only be compensatory and must not reflect any punitive element.
  195. Mr Caldecott submitted that, Miss Naomi Campbell having made to the Mirror a valid complaint that it had disclosed personal private information, its response was to vilify her when she was in a “fragile” condition.
  196. Mr Caldecott submitted that that must sound in aggravated damages.
  197. He said that “it can be characterised as rubbing salt in the wound” or in this case “Kicking the lady when she was down”. Mr Caldecott asked:-
  198. “It would be wrong, would it not, to set out to seek to deter someone from pursuing an action by seeking to aggravate the anxiety which necessary attends litigation? ”
  199. Mr Morgan replied:-
  200. “You have an assumption there that we have ever sought to deter her from litigation; nothing could be further from the truth. I have actually been waiting to have a chance to speak publicly on this particular issue for some time in a Court of Law.”
  201. A mainspring of her resort to litigation was to fight for her privacy as a matter of principle.
  202. It was a fight which Mr Morgan relished.
  203. He said in evidence:-
  204. “I think our intentions towards Miss Campbell changed after she sought to take legal remedy against us”
    Because I found the whole idea of her trying to go after us on privacy on this particular matter utterly absurd”
    I found her attempts to seek legal redress on the grounds of privacy in relation to what we had done absurd and worthy of condemnation”
  205. The battle lines were drawn in Mr Morgan’s editorial of the 5th February 2001.
  206. It was followed up in the Mirror of the 7th February 2001 by the article entitled “Fame on you, Ms Campbell”, every word of which was read by Mr Morgan before publication.
  207. As this article is the main basis of the claim for aggravated damages I quote part of it:-
  208. “The object of her wrath is the press in general. The Mirror in particular, for revealing the very positive fact that here’s a famous woman facing up to her drug problems by attending Narcotics Anonymous meetings. A revelation which clashes with the London launch of her perfume, Eau dear.
    If she had any sense at all Naomi would appreciate that to us mere mortals the sight of her going to gruelling counselling sessions to root out her problems would appear to be one of the saner decisions in her rather erratic life.
    Sadly, she has neither the wit nor the wisdom to see it that way and now plans - after years of thrusting her failed projects like the nauseating book Swan and equally appalling record Love and Tears down our throats-- to launch a campaign for better rights for celebrities or “artists” as she calls them: though it has to be said if Naomi’s an artist I’m a rocket scientist.
    Gosh, I bet Elton, Geri and Robbie are trampling over themselves to beat a path to her door on this one. As a campaigner, Naomi’s about as effective as a chocolate soldier. She was sacked as figurehead of the animal charity People for the Ethical Treatment of Animals after she wore a fur in the Fendi show. Doh!
    Her “fight” - albeit worthy - against racism and “narrow minded-ness” in the fashion industry came about when, after years in the business, she was relegated from the cover to the inside pages of an issue of American Vogue magazine. The problem is that Naomi doesn’t actually “stand” for anything. She can’t sing, can’t act, can’t dance, and can’t write.”
  209. During Miss Campbell’s cross-examination was this passage:-
  210. “Did you tell Mr Landesman you had seen the piece and got upset for 5 minutes?
    A. We were talking about the piece of the chocolate cookies the chocolate soldier and, at that point I just had to laugh because if they had to go as low as discriminating the colour of my skin, which I am very proud to be. I had to laugh and that is what I was talking about for 5 minutes. But, on the whole, the general thing is I am going to put on a brave face giving an interview, not breaking down crying for sympathy. I fee strongly that what I am doing is correct for myself, so I am going to stand up for myself”
  211. Mr Browne accused her of telling a “Whopper” because the “chocolate soldier” article did not appear until three days after Mr Landesman’s article.
  212. Miss Campbell said:-
  213. “It is not a blatant lie. It is something that I did know about which did upset me. I am confusing all the articles in one”
  214. Observing Miss Campbell at this stage of her cross-examination I was becoming concerned that she was getting confused.
  215. I accept her evidence that she was not telling a deliberate lie and was confused.
  216. In her witness statement she said that her statement to Mr Landesman was “putting a brave face on it”.
  217. I accept that explanation despite Mr Landesman’s evidence. In his written statement he said:-
  218. “The more I talked to her, the more I sensed that Naomi does not seem personally very hurt by the invasion of her privacy.”
  219. This he confirmed in re-examination but also said:-
  220. “I found that part of the problem was that Naomi did not manage to articulate her feelings or her case in a very clear comprehensive way at times”
  221. A considerable amount of time was spent during oral evidence and argument on the statement that Miss Naomi Campbell could be compared to a “chocolate soldier”. Miss Carroll’s article, was offensive. I can well understand that Miss Campbell found the phrase hurtful and considered it racist.
  222. Mr Browne submitted that it was a commonplace simile with origins which included the description by Australian soldiers who had fought at Gallipoli of those Australian troops who did not go beyond Egypt and possibly Shavian origins in 1898. It was a simile with which I was unacquainted. Both Mr Morgan and Miss Carroll emphasised that they had no intention of being racist. Mr Morgan said that the simile was used by his army officer relations and Miss Carroll said that she used the phrase “chocolate soldier” in the presence of those members of family who were of mixed race. Nevertheless I remain surprised that they thought it appropriate to compare Miss Campbell to a “chocolate soldier” in a highly offensive and disparaging article in 2001.
  223. The tone of the article of the 7th April was repeated the following day in the Mirror, in the article “It’s a Miracle” when after a promotion of her perfume she was sarcastically condemned for hypocrisy.
  224. A newspaper faced with litigation is entitled to assert and publish in articles that a claim against it should never have been made and that any complaint should have been made to the Press Complaints Commission. Articles making such assertions may be written in strong and colourful language. It is not for the Courts to censor bad taste.
  225. However, if the Newspaper conducts its defence or publishes articles which belittle the claimant in relation to her claim for breach of confidential information or for breach of section 13 of the Data Protection Act 1998, insofar as that belittlement causes increased injury to Miss Campbell’s feelings it will sound in aggravated damages because the defendants are rubbing salt into the claimant’s wounds. Such damages must never have any punitive element but must be solely related to compensation.
  226. Mr Browne’s cross-examination of her was vigorous but proper. Mr Morgan was very forthright during his evidence condemning Miss Campbell’s attitude and her evidence.
  227. Yet I am not satisfied that Miss Campbell suffered any significantly increased distress or injury to feelings from the manner in which the defendants conducted the trial.
  228. However, I am satisfied that Miss Carroll’s article sounds in aggravated damages. That article did not only criticise the merits of her claim in strong and colourful language but also to use Mr Caldecott’s phrase “Trashed her as a person” in a highly offensive and hurtful manner. That trashing entitles her to aggravated damages. I assess aggravated damages in the sum of £1000.
  229. The total sum for both damages for breach of confidentiality and for compensation under Section 13 of the Data Protection Act 1998 is £3500.


© 2002 Crown Copyright


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