The House of Lords handed down its decision in the case of Naomi Campbell v. Mirror Group Newspapers Ltd  UKHL 22 on 6 May 2004.
The case concerned the publication of an article by the Mirror newspaper concerning Ms Campbell. Ms Campbell, a famous model, had claimed in interviews that she did not take drugs. However, on 1 February 2001, the Mirror published an article entitled “Naomi: I am a drug addict” giving details of Ms Campbell’s drug addiction and attendance of Narcotics Anonymous (“NA”) meetings. The article, which adopted a sympathetic tone, included photographs of Ms Campbell which, it was clear from the captions and text, were taken outside NA meetings. It also included various details of the nature of the therapy which she was receiving at NA.
Ms Campbell brought an action against the Mirror claiming, amongst other things, damages for breach of confidence and/or invasion of privacy. Following Ms Campbell’s complaints the Mirror published two highly critical articles in relation to her, including a photograph of her leaving an NA meeting.
At first instance, Moreland J found for Ms Campbell on both points and awarded total damages of £3500. His decision was overturned by the Court of Appeal and the case went to the House of Lords.
It was not in dispute that Ms Campbell’s public lies prevented her from complaining about publication of the fact (1) of her drug addition and (2) that she was receiving treatment, even though these were private facts (“the Undisputed Facts”).
However, the following facts were alleged to be confidential such that they should not have been published (“the Disputed Facts”):
1. The fact that the treatment was at NA.
2. Details of the treatment – how long she had been attending the meetings, how often she went, how she was treated within the sessions, her commitment, the nature of her entrance to the meetings on the specific occasions.
3. The visual portrayal of Mr Campbell leaving a specific NA meeting.
The House of Lords allowed the appeal by a majority of 3 to 2 (Lord Hope, Baroness Hale, Lord Carswell (for the majority) with Lord Nicholls and Lord Hoffman (dissenting)).
It was conceded at first instance that damages were not being claimed for infringement of privacy as a free-standing tort but as a species of breach of confidence which, broadly, arises where a person acquires or receives information which is confidential in circumstances in which he knew or ought to have known was subject to confidence.
The Court also had to give effect to Articles 8 and 10 of the European Convention of Human Rights due to the Human Rights Act 1998 (“HRA”) which requires that all primary and secondary legislation be interpreted in a manner compatible with Convention rights so far as it is possible to do so (s3(1)).
Article 8 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence” and that no public authority should interfere with that right except such as is in accordance with the law and is necessary in a democratic society for various reasons including “for the protection of the rights and freedoms of others”.
Article 10 provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information an ideas without interference by public authority.” However, the freedom is counterbalanced by the requirement that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, amongst other things, “for the protection of the reputation or the rights of others and for preventing the disclosure of information received in confidence”.
The Court’s findings as to breach of confidence
The dissenting judgments
The minority did not consider that the Disputed Facts were such that they could not be disclosed. Nicholls LJ and Hoffman LJ reasoned that once it was conceded that the Undisputed Facts were in the public domain, the rest would follow. Nicholls LJ commented that the Disputed Facts were closely tied to the fact that Ms Campbell was addicted and receiving treatment and NA was a standard treatment for this kind of problem such that disclosing this was no more confidential than saying that someone who fractured a limb had it in plaster.
Hoffman LJ did accept that information about health and drug dependency would normally be private. However to someone who knew the Undisputed Facts, the remaining disputed facts would come as no surprise. The additional details were not embarrassing and were facts of a “relatively anodyne nature”. In particular, in terms of balancing the interests, once it was conceded that the main substance of the story was justified the Mirror should be allowed a margin for error, especially given that editorial decisions have to be taken quickly such that requiring a news paper always to get it absolutely right would tend to inhibit the publication of the facts which should in the public interest be made known.
Hoffman LJ gave as an example of where the line should be drawn between private facts disclosable in the public interest and related details which were not justified, a story about a public figure who was having a sexual relationship with someone she had appointed – the existence of the relationship could be reported but the addition of salacious details or intimate photographs would be disproportionate because it was too intrusive or demeaning.
Neither judge considered that the photographs and their captions added anything to the case. Hoffman LJ commented that they were not embarrassing and that expecting a story without pictures would not be realistic from a journalistic point of view.
The majority judgments
A key issue in the majority judgments was their view that details of therapy and treatment at NA were analogous to clinical details of the treatment of a medical condition, a point the Court of Appeal had not accepted. They also put significantly more weight on the harm and distress the disclosures could cause to a recovering addict.
Hope LJ commented that the key issue in breach of confidence cases was to decide if the information disclosed was private and not public - some interest of a private nature which the claimant wishes to protect (A v B plc  QB 195). Where this was not obvious the broad test is 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 test was used in Australian BC v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 by Gleeson CJ but Hope LJ emphasised that the test had to be seen in context as a useful practical test in some circumstances but one which may not needed where details were obviously private, such as those relating to health. The Court of Appeal had wrongly applied the test in a “quite unreal” way based on the reader of the article in general.
Baroness Hale also emphasised that the Australian BC test was not necessary where information was obviously private such as information about a person’s health and treatment for ill-health.
Particular factors drawn out by Hope LJ in discussing whether the information was “obviously private” (and, in particular, akin to medical information) were that NA meetings are well known to be beneficial and the anonymous nature is important – the assurance of privacy is an essential part of the exercise and the therapy is at risk of being damaged if the duty of confidence which participants owe to each other is breached. Baroness Hale noted, in discussing the confidential nature of the treatment, that drug abuse can be very damaging to mental and physical health and that therapy aimed at maintaining and reinforcing the resolve to keep up the abstinence is vital.
In going on to assess whether, on balance, the disclosure was justified, Hope LJ applied a two fold test: whether (1) publication of the material pursues a legitimate aim and (2) the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. Hope LJ took account of the Mirror’s wish to put forward a credible and sympathetic story but also noted that the right of the public to know the Disputed Facts was of lower order than that of correcting Ms Campbell’s lies, which were corrected by the Undisputed Facts. The more intimate the details of private life being referred to, the more serious the reasons for doing so must be. There were different degrees of privacy and the disclosure of details of treatment had the potential to harm Ms Campbell such that a good deal of weight should be attached to them.
Both Hope LJ and Baroness Hale, in carrying out the balancing exercise, also differentiated between political expression and artistic or commercial expression, the first being the most important. Hope LJ noted that no political or democratic issues were at stake nor had any pressing social need been identified. Baroness Hale commented that the publication of the Disputed Facts would not obviously assist the political or social life of the community or the artistic, intellectual or personal developments of individuals, save possibly that the story might be educational.
For Hope LJ the use of the photos was what swung the balance in Ms Campbell’s favour because a reasonable person would regard them as adding greatly to the intrusion on privacy, although he acknowledged generally that in doubtful cases where the rights are about even the margin of appreciation would be given to the journalists.
Baroness Hale, in weighing the respective interests, also noted that the information about details of NA meetings would have contributed to Ms Campbell’s sense of betrayal and destroyed the value of NA as a safe haven for her. Publishing the photographs of her going to or coming from an NA meeting might add to this damage and deter Ms Campbell from seeking therapy again. Further, the Mirror had no need to use these photographs in light of the story. She emphasised however, that the weight to be attached to these considerations is a matter of fact and degree and disclosure will not always risk harm to a person’s physical or moral integrity.
Lord Carswell agreed that the information was confidential for the reasons given. It was a “delicately balanced decision” but he agreed with Hope LJ and Baroness Hale in particular because of the distress caused to Ms Campbell and the risk of a setback to her recovery from drug addiction.
Statements of general principle
The comments made by the House of Lords on the key points of principle deserve further consideration and were unanimous on broad points. The division of the Court was about how Article 8 and 10 should be applied. As Lord Carswell observed – “The carrying out of the balancing is at the centre of this case and forms the point at which the two currents of opinion divide”.
The House agreed that there was no free standing right of privacy, citing Wainwright v Home Office  3 WLR 1137. However, they also made interesting and slightly varying comments as to precisely how the HRA had shaped and transformed the action of breach of confidence.
Lord Nicholls and Lord Hoffman both went relatively far in their assessment. Nicholls LJ noted that privacy was “a fast developing area of the law” and that the enactment of the HRA which had “spurred” its development. He went so far as to say that in light of the development in the seminal case of AG v Guardian Newspapers (No 2)  1 AC 109 that a confidential relationship was not required but that someone is taken to be fixed with a duty if information is obviously of a confidential nature, “The essence of the tort is better encapsulated as misuse of private information”.
Hoffman LJ commented that while there was no right of privacy as such the right of privacy is one of values and can be identified as sometimes the most important value underlying some specific causes of action such as breach of confidence. He pointed to the development of the law in AG v Guardian (discussed above) and the influence of Article 8 which led to acceptance of “the privacy of personal information as something worthy of protection in its own right”. He saw this as having changed the emphasis of the breach of confidence action and having important ramifications for its development in the future:
“The result of these developments has been a shift in the centre of gravity of the action for breach of confidence where it is used as a remedy for the unjustified publication of personal information.....the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.
These changes have implications for the future development of the law. They must influence the approach of the courts to the kind of information which is regarded as entitled to protection, the extent and form of publication which attracts a remedy and the circumstances in which publication can be justified”.
Hope LJ did not go so far in his analysis and said that he did not consider that the HRA had fundamentally changed the policy issues or balancing exercise required since Goff LJ in AG v Guardian made it clear that, at common law, there were limits on breach of confidence, in particular where the public interest in preserving confidences was outweighed by a countervailing public interest favouring disclosure. He did acknowledge that the HRA had changed the vocabulary of these limiting principles and made the process of these evaluations more explicit but disagreed with Hoffman LJ’s more radical suggestion that the centre of gravity of breach of confidence has thereby shifted. “It seems to me that the balancing exercise to which [the ECJ] guidance is directed is essentially the same exercise, although it is plainly now more carefully focussed and more penetrating”. However, he did agree that it had made action of breach of confidence stronger.
Baroness Hale also acknowledged that the HRA, while not creating a new cause of action as such, was shaping the existing causes of action. “The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as public authority must act compatibly with both parties’ Convention rights. In a case such as this, the relevant vehicle will usually be the action for breach of confidence”.
The Court also accepted the guidance of Woolf LCJ in A v B plc that “the values enshrined in articles 8 and 10 are now part of the cause of action of breach of confidence”. Moreover they accepted that the Article 8 right can be enforced between individuals and non-governmental entities as well as against the government. The values of Articles 8 and 10 should underpin such disputes as well.
In terms of the analytical framework for assessing the issues and balance, it was also agreed that the approach was to decide if the information was confidential and then to balance the competing interests in Article 8 and 10.
Their Lordships also agreed that there was no presumption of automatic priority as between Articles 8 or 10. As Hoffman LJ commented: “The question is rather the extent to which it is necessary to qualify one right in order to protect the underlying value which is protected by the other.” The extent of qualification must be proportionate to the need.
The action of breach of confidence has spent most of its life chiefly as a remedy for the protection of commercial or trade secrets. It was first used as a means of protecting privacy in Prince Albert v Strange (1849) 2 De G & Sm 293; 1 Mac & G 25, perhaps the first incarnation of the phenomenon of celebrity to come before the English Courts. The case concerned etchings made by Queen Victoria and Prince Albert of their children and other subjects of family interest for private use, of which the defendant had obtained impressions which he intended to publish. An injunction was granted to restrain such publication - described by Vice-Chancellor Knight-Bruce as “a sordid spying into the privacy of domestic life – into the home (a word hitherto sacred among us)”.
While the action of breach of confidence has been used since then to defend privacy, it seems fair to say that this was not regarded as its chief function. However, as Woolf LCJ acknowledged in A v B Article 8 and 10 were given effect in England by being absorbed into the action for breach of confidence. The absorption involved giving new strength and breadth to the action and there can be no doubt that this process has mutated the action. Hence, breach of confidence is shifting its emphasis from what might be regarded as its traditional role in relation to commercial secrets to become the servant of Article 8. Hoffman LJ went the furthest in acknowledging this sea-change, as is clear from the passage quoted above.
In the modern age, where celebrities become icons and inevitably court publicity to further their career, the challenges of balancing the Article 8 and 10 rights are brought sharply into focus. These are points of fundamental ideological importance because, as Nicholls LJ observed, both rights “lie at the heart of liberty in a modern state”.
This is just one of a number of recent cases where the public interest in celebrities and the celebrity’s right to privacy has clashed head on. It was already clear from A v B that where a public figure chooses to present a false image and make untrue pronouncements about their life, the press will normally be entitled to put the record straight. As Woolf LCJ commented in that case:
“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 a 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. …. 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. …. 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.”
This case illustrates the complexities of deciding what is fair game where some aspects of a celebrity’s life which would normally be private are conceded to be disclosable. As Hoffman LJ noted, the main difference of opinion in the House arose from a narrow point on the unusual facts of the case because Ms Campbell had conceded the Undisputed Facts could be disclosed. This appears to have been a crucial factor in the minority’s analysis of whether the Disputed Facts were confidential at all in that context and/or on the extent of latitude the press should be given in view of the balance between Articles 8 and 10. The majority were more able to differentiate the Undisputed and Disputed Facts and did not see the disclosure of some facts as inevitably meaning the rest also came within the scope of freedom of expression. The greater weight and significance which they attributed to the NA therapy and the emotional effects on recovery from drug dependency were crucial factors in the majority’s decision in Ms Campbell’s favour.
The case does suggest that the weight given to freedom of expression where it concerns commercial expression about celebrities without a political, artistic or educational aspect will not be regarded as meriting an intrusion of privacy where there is a risk of harm to a person’s physical or moral integrity. It can at least be concluded that where details concerning a serious medical condition such as drug addiction which makes an individual particularly vulnerable to criticism and health risks due to relapse will be beyond the pale of freedom of expression. This is quite an extreme set of circumstances and one would hope that the newspapers will be able to identify cases where there is such a risk of harm. However, the line between what is fair game and what is not does seem somewhat divorced from the realities of journalism. One has some sympathy with the observation of Lord Phillips in the Court of Appeal that the distinction between the Undisputed and Disputed Facts was “lacking in realism”: “What is it suggested that the Mirror should have published? ‘Naomi Campbell is a drug addict….she is receiving treatment for her addiction’. Such a story, without any detail to support it would have bordered on the absurd”.
Also published in the June 2004 issue of WIPR.
 Ms Campbell also claimed damages for breach of duty under the Data Protection Act 1998 and compensation under s13 of the Act. The Court of Appeal rejected this claim on the basis of the broad exemptions for the press within the Act. The issues appear to have been dropped on the appeal – the parties agreed the case stood or fell on outcome of main claim regarding breach of confidence.