Privacy and the popular press

21 September 2004

Peter Emanuel

In England, scandalous details of the private lives of individuals have always proved popular with the newspaper reading public. Such stories sell newspapers, particularly when the individuals concerned are public figures. So the newspapers have always defended their right to publish them. The usual excuse they give is that the stories are “in the public interest” although this has often meant no more than that the public finds them interesting.

The law of privacy in England has, until recently, been vague and undefined. Individuals, finding their private lives made public in the popular press, have traditionally relied upon the law of defamation for protection and redress - but what if the story is true?

Ms Naomi Campbell, famous model of haute couture, revelled in the favourable publicity that her looks and profession brought her. Yes, she said publicly (and for publication), many people in the modelling world took illegal drugs and suffered from addiction but she (thank goodness) was not one of them.

Imagine, then, our surprise (and Ms Campbell’s shock) when the Daily Mirror newspaper published the details of treatment Ms Campbell was receiving for drug addiction, with photographs of her leaving the premises of Narcotics Anonymous where she had been attending a meeting. She sued.

Her claim was for damages for breach of confidence and compensation under the Data Protection Act 1998, alleging that the Mirror had wrongfully published private information. Also, did she not have a right to privacy under Article 8 of the European Convention of Human Rights? The Mirror defended the claim on the basis that publication of this particular private information was justifiable in the public interest (it corrected her public lie) and that Article 10 of the European Convention of Human Rights (freedom of expression) would be infringed if such publication was repressed. The problem facing the courts was how these two competing claims should be balanced.

The case went through the English civil courts from the High Court at first instance, via the Court of Appeal, ending in the House of Lords, with the balance first going in favour of Ms Campbell, then in favour of the Mirror before the Lords finally found in her favour[1], although only by a majority. From that majority judgment media lawyers have drawn what is known as the “Campbell Privacy Test”, which they apply when asked to advise newspapers on what they can and cannot publish.

Briefly the test is as follows:

  1. Is the information private on its face? If this is not obvious then it will be treated as such if its disclosure would cause substantial offence to a person of ordinary sensibilities in similar circumstances.
  2. If it is prima facie private information, then a balancing act must be done. Would the benefit to be achieved by publication be proportionate to the degree of harm that might be done to the right of privacy?
  3. Is disclosure in the public interest?

In the Campbell case the House of Lords concluded that the Mirror had gone too far. The details of Ms Campbell’s treatment and the photographs of her leaving Narcotics Anonymous went beyond what Article 10 and the public interest entitled the Mirror to publish. Thus, ultimately, it was a question of degree.

Lord Coe, famous as the Olympic athlete Sebastian Coe, one-time Member of Parliament and leader of London’s bid to host the Olympics, failed to prevent the publication of an interview with Vanessa Lander in which she revealed that she had had an extra-marital affair with him and had terminated a pregnancy during their relationship. He was refused an injunction to prevent publication of the interview. The judgment was not recorded but it appears that Ms Lander’s right to freedom of expression under Article 10 and her waiver of the confidentiality of the medical detail of her termination, outweighed Lord Coe’s Article 8 right to privacy.

Clearly the “Campbell Privacy Test” results in each case turning on its own facts. Lawyers advising newspapers and other publishers will have to try to assess how the courts will balance the competing rights in each particular case. No doubt the continuing addiction of the English public to reading salacious details of the private lives of their heroes and heroines and the media’s enthusiasm for feeding that addiction, will continue to provide further examples.

(With thanks, and acknowledgment of her contribution, to Rebecca Annison)

[1] Campbell v MGN [2004] UKHL 22