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Naomi Campbell wins privacy appeal in House of Lords

Out-Law News | 06 May 2004 | 12:00 am | 3 min. read

By a three-to-two majority the House of Lords has upheld Naomi Campbell's appeal in her long running breach of confidentiality and Data Protection claim against the Daily Mirror.

The Lords' decision re-instates the damages awarded in the High Court decision, and reverses the Appeal Courts' award of expenses in favour of the Daily Mirror against Campbell.

Background

In February 2001 the Daily Mirror published an article detailing supermodel Campbell's attendance at Narcotics Anonymous meetings, and printed photographs of her leaving such a meeting.

Campbell successfully sued the newspaper in the High Court, on grounds that the report amounted to a breach of confidence, and violation of the Human Rights Act and the Data Protection Act. She was awarded somewhat nominal damages of £3,500.

That decision was overturned by the Court of Appeal in October 2002. Its decision relied heavily on the fact that Campbell had denied having a drugs problem.

House of Lords ruling

While today's decision of the House of Lords was split between the five judges, it is clear from the judgments that the decision relates to the particular circumstances of the case, as recognised by Lord Hoffman (who voted against the appeal) who states:

"...the differences of opinion relates to a very narrow point which arises on the unusual facts of this case... But the importance of this case lies in the statements of general principle on the way in which the law should strike a balance between the right to privacy and the right to freedom of expression, on which the House is unanimous."

It is arguable, therefore, that the House of Lords in its judgment is further developing a law of privacy within the UK.

All of the judges recognise that this has to some extent or another been impacted upon by the Human Rights Act 1998, which incorporated the European Convention on Human Rights into UK Law.

Articles 8 and 10 of the convention in particular give rise to rights to respect for private life and a countervailing right to freedom of expression. While the rights may have always existed to some extent in UK law, the incorporation of the convention means that judgments of the European Court of Human Rights should be taken into account in UK law.

Neither of the parties contested that these rights existed. However it is clear that the decision in each case where they arise will need to strike the balance between the competing nature of the rights.

In terms of a right to privacy, Lord Hope (who found in favour of Campbell) states that:

"The underlying question in all cases where it is alleged that there has been a breach of the duty of confidence is whether the information that was disclosed was private and not public. There must be some interest of a private nature that the claimant wishes to protect."

Referring to a 2003 judgment of the Court of Appeal (known only as the case of "A v B Ltd."), he continues that, where the distinction between private and public is not obvious,

"the broad test is whether the 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."

Baroness Hale (who decided in favour of the Campbell) further states:

"It has always been accepted that information about a person's health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor-patient relationship, but from the nature of the information itself."

Dr Chris Pounder of Masons, the firm behind OUT-LAW.COM, and editor of Data Protection and Privacy Practice, said:

"Today's judgment has nothing to say about the Data Protection Act and the House of Lords has not provided hard and fast rules which can be applied by the press when balancing the freedom of expression with respect for a private life. However, it is interesting that the some of the Law Lords were explictly referring to the right to privacy".

He continued:

"The judgment has reinstated the idea that celebrities can claim to have a private space which could afford limited protection from excessive invasion of privacy. However the matter before the House of Lords was very finely balanced and one gets the sense that a different panel of Law Lords, or a slightly different set of facts, could have resulted in a different conclusion".

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