Breach of confidence: Naomi Campbell appeal

The supermodel, Naomi Campbell, brought an action in 2001 for breach of confidence and breach of the Data Protection Act 1998 against the publishers of the "Daily Mirror" over the publication of articles revealing that she was receiving treatment for drug addiction and photographs which showed her leaving a Narcotics Anonymous (NA) session (see feature article "Privacy law: An overview", www.practicallaw.com/A36141).

The dispute concerned five categories of information published in the "Daily Mirror":

The House of Lords found in favour of Ms Campbell, holding that:

Certain aspects of the court's decision could have significant implications for the development of protections for personal privacy under English law.

Breach of confidence. In this case the court has very clearly developed a distinct action in confidence where there has been "wrongful disclosure of private information". It was acknowledged that there has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information.

The court also recognised that the values enshrined in Article 8 and Article 10 of the ECHR were now part of the cause of action for breach of confidence.

Parties to the dispute. The court agreed that the values embodied in Articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority.

Although Article 8 is, by virtue of section 6 of the Human Rights Act 1998, a guarantee of privacy only against public authorities, the court could "see no logical ground" for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification.

Balancing rights. The court agreed that the rights in Articles 8 and 10 rank equally: neither has precedence over the other, nor is there a presumption in favour of one rather than the other.

It was also held that the right to privacy has to be balanced against the right of the media to impart information to the public, and the right of the media has to be balanced in turn against the respect that must be given to private life.

When both Articles 8 and 10 are engaged, a difficult question of proportionality arises. The court said that the question is therefore the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. The extent of the qualification must be proportionate to the need. The courts will look first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and then apply the proportionality test to each.

In essence, this involves asking whether the benefits to be achieved by publication are proportionate to the harm that may be done by the interference with the right to privacy.

The legal test. It is clear from the judgment that the first question to be asked in cases of potential wrongful disclosure of private information is whether the information that was disclosed was private and not public. In some cases the information will be obviously private and so Article 8 would be engaged.

Where it is not obvious, the test was whether disclosure of the information about the individual (A) would give substantial offence to A, assuming that A was placed in similar circumstances and was a person of ordinary sensibilities.

The court also held that, in order to assess whether disclosure would cause substantial offence to the person of ordinary sensibilities, the courts must look to "the sensibilities of a reasonable person placed in the situation of the subject of the disclosure rather than to its recipient". This is contrary to the Court of Appeal's approach, which looked at the question from the eyes of a reasonable reader of ordinary sensibilities (www.practicallaw.com/A27335).

Photographs. The court held that a photograph is in principle information no different from any other information. In this case therefore the photographs conveyed no private information beyond that discussed in the article, but that was an actionable intrusion of privacy. This was so even though the photographs were taken of Ms Campbell in a public place, because she was engaged in a private activity (namely, attending NA).

The key in relation to photographs in public places therefore seems now to be whether or not the activity photographed is itself private. In this case it was, but the court acknowledged that: "If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint."

The decision shows how subjective "privacy" law has become. Of the nine judges who have heard the case from first instance to the House of Lords, five favoured the "Daily Mirror"and four Ms Campbell. Even after the legal test was definitively settled by the House of Lords, the panel split 3:2 on its application to the facts of the case.

Although Lord Hoffmann (in the minority) described the issue between their lordships to be a "very narrow point", it was crucial, and similar issues regarding what is private, how private it is and what justification there is for its publication, are likely to recur in future cases. Continued judicial disagreement and legal uncertainty can be expected for some time.

For the moment, any person considering publishing private information concerning someone else should consider carefully what justification there is for it, but this is far from easy. If the judiciary can come to such radically different views after hours of consideration, what chance does a newspaper editor or lawyer have in determining whether an article to be published is actionable in privacy?

Baroness Hale (in the majority) acknowledged that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself "a restriction on their freedom of expression". However, that analysis is now required of editors and their lawyers.