Secrets and lies
1 December 2002
14 July 2014
29 May 2014
27 February 2014
3 June 2014
21 August 2014
Until the introduction of the Human Rights Act 1998 (HRA) in October 2000, there was no such thing as a right to privacy. While certain kinds of confidential information were protected from unlawful disclosure under common law, it is the HRA's implementation of the European Convention on Human Rights (ECHR) that has led to the faster development of a confidentiality/privacy law. The courts have since been obliged to strike a balance between two fundamental ECHR rights - the right to respect for private life in Article 8 and the right to freedom of expression in Article 10.
In March 2000 another piece of privacy legislation was introduced - the Data Protection Act 1998 (the act). This relates to information held on computer or as part of a structured filing system. Anyone processing such data has to comply with the requirements of the act and must process the data fairly and lawfully.
In the last two years the new laws have been used by public figures to seek to prevent the publication of information said to be private. For example, professional footballer Gary Flitcroft tried to prevent publication of a kiss-and-tell story by two women with whom he had had affairs and TV presenter Jamie Theakston applied for an injunction to restrain publication of the fact that he had visited a brothel - both were unsuccessful and publication went ahead; and supermodel Naomi Campbell brought an action against the Daily Mirror for damages for breach of confidentiality and compensation under the act.
The facts in the case were that the Daily Mirror received information that Campbell was attending Narcotics Anonymous. Photographs of her leaving a meeting were taken without her knowledge and the headline 'Naomi: I am a drug addict' was published. Her solicitors claimed this was a breach of confidence or invasion of privacy.
However, Campbell had on a number of occasions spoken publicly about the drug culture in the fashion business. She had gone out of her way to say that, in contrast to many models, she herself did not take drugs. She had therefore deliberately painted a misleading impression of herself to the public.
It is a defence to a claim for breach of confidentiality/invasion of privacy that disclosure is in the public interest. This was accepted by Campbell's lawyers and she did not complain that the newspaper had exposed her previous false statements or that she was a drug addict. She also would not have complained if the newspaper had merely said that she was a drug addict receiving treatment, without disclosing that the treatment involved her attending Narcotics Anonymous. The Daily Mirror's case was that, once the newspaper was entitled in the public interest to say that Campbell was a drug addict and was undergoing treatment, the mere disclosure that the treatment was at Narcotics Anonymous was no longer confidential information.
Piers Morgan: editor of the Daily Mirror
At first instance, Mr Justice Morland, although he thought the public had a need to know that Campbell had been misleading the public, agreed with the claimant. He felt that disclosure of the "details" of the treatment - in effect, the naming of Narcotics Anonymous and the photographs - were a step too far and she had established a breach of confidentiality. He found that the reference to Narcotics Anonymous had the necessary quality of confidence, as that information would be highly offensive to a reasonable person of ordinary sensibilities; he also concluded that these "details" had come from a source under a duty of confidentiality - either a fellow drug addict or one of her entourage. He awarded damages of 2,500 for the distress suffered over and above her distress at being exposed as a drug addict and liar and a further 1,000 in respect of two other articles in the Daily Mirror, which the judge found to have aggravated the injury.
The Court of Appeal
The Court of Appeal emphasised the fact that just because an individual has achieved public prominence, it does not give the media a free rein with their private life; but if a public figure chooses to make untrue pronouncements about their private life, the press will normally be entitled to put the record straight.
On confidentiality, the court held that, since it was legitimate in the public interest to put the record straight by publishing the fact that Campbell was a drug addict and was receiving treatment, then it was not particularly significant merely to add that the treatment consisted of Narcotics Anonymous meetings. The court did not consider that a reasonable person of ordinary sensibilities on reading that Campbell was a drug addict would find it highly offensive that she was attending such meetings. It also found that the photographs of Campbell in a public street did not affect the position. The additional "details", particularly the identification of Narcotics Anonymous and the photographs, were legitimate in that they demonstrated that Campbell had been deceiving the public by saying she did not take drugs.
As a general principle, the court thought that, provided publication of particular confidential information is justifiable in the public interest, the journalist must be given reasonable latitude as to the manner in which it is conveyed, or their right to freedom of expression under Article 10 will be inhibited.
Data Protection Act 1998
The act regulates the processing of information about individuals and requires that controllers of such data process the information fairly and lawfully and only so long as certain conditions are met.
Section 13 of the act entitles an individual who suffers damage or distress by reason of contravention of the act to recover compensation.
There are exemptions - in particular, Section 32 provides that personal data processed only for "special purposes" (including journalism) is exempt from the vast majority of the requirements of the act if the processing is undertaken with a view to publication and the data controller reasonably believes that publication would be in the public interest, and that compliance with the act is incompatible with the special purposes.
MIRROR GROUP NEWSPAPERS LTD (2002)
 EWCA Civ 1373
CA (Phillips MR, Chadwick LJ, Keene LJ)
Andrew Caldecott QC and Antony White QC instructed by Schilling & Lom (now Schillings) for Campbell. Desmond Browne QC, Richard Spearman QC and Mark Warby QC instructed by Davenport Lyons for MGN.
At trial, the Daily Mirror argued that, although it had processed personal data relating to Campbell within the act, such data was exempt under Section 32 and there had therefore been no contravention for which Campbell could seek compensation. The judge, however, concluded that Section 32 draws a clear distinction between the processing of data and its subsequent publication. Having regard to the words "with a view to publication", the exemption applied only to processing prior to publication in a newspaper. While Section 32 protected journalists from being restrained by interim injunction from processing information with a view to publication, they enjoyed no special protection from claims for compensation under Section 13 after publication.
The result was that after publication the media could be liable for compensation for contravention of the requirements of an act from which it was exempt prior to publication. The judge found that the newspaper was in contravention of the act, but did not award Campbell any additional compensation.
This interpretation would have had the most surprising and far-reaching results. A newspaper would hardly ever be entitled to publish any personal information without the risk of having to pay compensation. If this were correct, the act had created a law of privacy by the back door. On behalf of the Daily Mirror, and indeed the media in general, it was regarded as imperative that, at the very least, this part of the judge's decision was overturned on appeal.
The Court of Appeal held that, although the act applied to the publication of newspapers and other hard copies containing information that had been subjected to data processing, the exemption in Section 32 was available after publication. The court agreed that it was totally illogical to exempt a newspaper from the obligation, prior to publication, to comply with provisions which it reasonably believed were incompatible with journalism, but to leave it exposed to a claim for compensation the moment the data had been published in hard copy.
The court accepted the impracticality for a newspaper to comply with many of the data processing requirements if it is to fulfil its function. Moreover, without the exemption, the act would be a radical restriction on the freedom of the press, as there would be no answer to claims for compensation in respect of the publication of personal information even where publication had been in the public interest. The court therefore overruled Judge Morland and held that the Daily Mirror was entitled to invoke the provisions of Section 32 in answer to Campbell's claim. This was a very important victory for the media in general.
Even though a newspaper is entitled to seek to rely upon the Section 32 exemption after publication, it must still establish a reasonable belief that publication is in the public interest and that compliance with the act is incompatible with journalism. This will depend upon the facts of each case. As far as the Campbell case is concerned, the Court of Appeal, having found that the 'details' of her attendance at Narcotics Anonymous were part of a journalistic package which were found to be reasonable to publish in the public interest, found that the Daily Mirror had complied with Section 32.
Thus, Campbell's claims for both breach of confidence and of the act were dismissed and the award of damages was set aside. But this may not be the end of the story - Campbell has applied for permission to appeal to the House of Lords, although she is not seeking to overturn the important principle that Section 32 applies even after publication of the data.
Sean Corbett is an assistant editor at Lawtel, part of Sweet and Maxwell
The case for the celebrity
If I had a pound for every time I hear someone say "celebrities aren't entitled to privacy", then I would be a wealthy woman. You hear it from journalists with a sensational scoop in mind, photographers with a zoom lens to hand, or even the lawyers advising them. Or perhaps from a member of the public, nose deep in the pages of Wotcha! or Allright magazine, checking out the latest sensational gossip.
But on what basis do they make that bald statement? Why should a celebrity be robbed of a basic right to privacy just because they are... celebrated?
Having acted for major newspapers, broadcasters and celebrities, I think we should take a far less narrow-minded view. Why not consider each case of alleged privacy invasion on its own merits? After all, aren't celebrities just slightly more famous versions of ourselves?
There have been numerous cases reported in the press in which a high-profile celebrity seeking to protect their privacy is pitched against the mighty media machine. That celebrity seeks recourse by way of litigation for breach of confidence and data protection or by making complaints to the Press Complaints Commission (PCC). But ironically, by seeking refuge from the media spotlight, celebrities are subjected to its glare, thanks to headlines such as 'TOP POP STAR WANTS TO BE LEFT ALONE!'
Of course, non-famous people also bring about privacy cases. Would you want details of your medical records published for all to see? What about photographs of victims of a railway disaster, or intrusive articles about the second cousin once removed of a local government minister? But the majority of cases that gain most publicity are big names and the result is a distorted picture of the fragile, selfish star having their cake (public adoration and fortune) and eating it (demanding privacy).
The Oxford English Dictionary describes privacy as "the state or condition of being withdrawn from the society of others or from public attention; freedom from disturbance or intrusion". Just because someone makes their living in the public eye, should they not be entitled to some quiet space, away from the media glare? Why do we think that simply because we recognise their faces we own every part of them and are entitled to details about every aspect of their lives?
The European Convention on Human Rights, incorporated into UK law by the Human Rights Act 1998, includes what has become known as 'the right to privacy' clause at Article 8. It states: "Everyone has the right to respect for his private and family life, his home and his correspondence." Similarly, the PCC code of practice sets out that "everyone is entitled to respect for his or her private and family life, home, health and correspondence."
Fame is described in the dictionary as: "Personal reputation, especially good personal reputation. The condition of being much talked about (especially favourably)." So because celebrities have some parts of their lives exposed to public scrutiny, does it mean that the lot is up for grabs?
Have you ever wanted the life of a celebrity? Have you coveted their clothes and jewellery (designer and expensive), hankered after their homes (mansion with pool, jacuzzi and stables), longed for their party invitations (with 'the beautiful people') or lusted after their partners? But what about being door-stopped by photo-hungry snappers? What about being machine-gunned by questions from hacks obsessed with tittle-tattle? What about living every aspect of your life in the dazzling glare of the media spotlight? Doesn't sound so attractive now, does it?
So why should a celebrity be denied the right to privacy? The classic answer is that they court the media and bring publicity upon themselves by allowing themselves to be photographed and giving interviews. But a butcher does not spend his social time elbow high in the bloodied carcass of a dead pig. Even a professional jockey sometimes discards his silks and gets off his horse.
Celebrities are people like us. They just happen to do something that attracts public and media attention. So to suggest that they do not have the right to privacy is to say that a top-class chef should never be able to pop out for a bag of chips.
Amber Melville-Brown is a partner at Schillings, which represented Campbell in the case