A duty of confidence arises “when confidential information comes to the knowledge of a person in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others” (Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109, per Lord Goff of Chieveley at 281).
The European Convention on Human Rights (the Convention) was incorporated into domestic UK law by the Human Rights Act 1998.
Article 8 of the Convention provides as follows:
“Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 10 of the Convention provides as follows:
“Freedom of expression
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In February 2001, The Mirror newspaper published a front-page article revealing that the supermodel, Naomi Campbell, suffered from drug addiction and was receiving treatment for the addiction. The article, headed “Naomi: I am a drug addict”, revealed that Ms Campbell was attending Narcotics Anonymous (NA) and contained (partially inaccurate) details about the NA treatment. The article also included photographs of the supermodel outside a NA meeting. The tone of the article was sympathetic towards and supportive of Ms Campbell.
Ms Campbell launched proceedings against The Mirror on the day the article was published (prompting The Mirror to publish a number of highly critical articles). At first instance, Morland J concluded that The Mirror’s publication breached Ms Campbell’s rights under the law of confidence and under the Data Protection Act 1998 ( EWHC 499). He awarded Ms Campbell £2,500 in damages, and a further £1,000 in aggravated damages based on the aggressive way in which The Mirror presented its later articles. The Court of Appeal overturned Morland J’s decision.
The House of Lords allowed Ms Campbell’s appeal and reinstated Morland J’s original order.
Although the judgment is not unanimous, all Law Lords did agree on a number of important matters of principle.
Right of informational privacy
All Law Lords agreed that, following Wainwright v Home Office  3WLR 1137, there is no “over-arching, all embracing cause of action for ‘invasion of privacy’” (Lord Nicholls, paragraph 11). However, where English law has an existing cause of action - such as breach of confidence - this must where necessary be shaped by the courts so as to give effect to the right to privacy in Article 8 of the Convention. In the case of an action for breach of confidence, the cause of action has been expanded by removing the need for the claimant to establish a relationship of confidence and by protecting information which is “private”, but which may not necessarily be “confidential” (Lord Nicholls, paragraph 14).
Indeed, in the case of breach of confidence, the Law Lords agreed that the cause of action has now been expanded to such an extent that it is better described as a free-standing right of informational privacy. In the minority judgments, Lord Nicholls suggests that “the essence of the tort is better encapsulated now as misuse of private information” (paragraph 14), and Lord Hoffmann observes that “ the cause of action focuses upon the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people” (paragraph 51). In the majority decisions, Lord Hope similarly notes that “The language [of an action for breach of confidence] has changed following the coming into operation of the Human Rights Act 1998 ” (paragraph 86).
It is also taken as read in all the judgments (although not all the Law Lords comment on the fact) that this right can be relied on by one private party against another private party. In other words, the right to informational privacy has horizontal effect; it does not just apply to actions against the state. This is stated explicitly in Lord Nicholls’ dissenting judgment (although there is no suggestion that the other Law Lords disagreed with him on this point):
“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.” (Paragraph 17.)
What does a right of informational privacy protect?
There is also broad agreement as to what the new right of informational privacy, or the expanded action for breach of confidence, should protect; namely, the disclosure of information where “the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential”. (Baroness Hale, paragraph 134.)
A number of the judgments also consider the test as to whether disclosure of the information would be “highly offensive to a reasonable person of ordinary sensibilities” (the test suggested in the second Restatement of Torts in the US and used by Gleeson CJ in the Australian case of Australian Broadcasting Corporation v Lenah Game Meats pty Ltd (2001) 185 ALR 1, at 13).
Baroness Hale and Lord Nicholls are both critical of this formulation of the test; Baroness Hale on the grounds that the “reasonable expectation” test is simpler and clearer; Lord Nicholls on the grounds, first, that the phrase “highly offensive” suggests too strict a test of what will be considered private and, second, that the test tends to confuse by encouraging consideration of whether publication is in the public interest - a matter which should be considered once it has been established if there has been a breach of privacy in order to assess whether the breach is justified (paragraph 22).
Balancing the right to privacy with the right to freedom of expression
As might be expected, the judgments are also unanimous in recognising the need to balance the right to privacy, under Article 8 of the Convention, with the press’ right to freedom of expression under Article 10 - and in recognising that, notwithstanding the wording of section 12(4) of the Human Rights Act 1998 (which requires the court to pay “particular regard” to freedom of expression), the court cannot automatically give priority to one right over the other.
There is also common agreement that any restrictions on freedom of expression must be “rational, fair and not arbitrary, and they must impair the right no more than is necessary”. (Lord Hope, paragraph 115.)
However, the judgments differ in the way they apply the balancing test to the particular facts of this case.
Andrew Caldecott QC, Counsel for Ms Campbell, divided the information published into five categories:
- The fact of Ms Campbell’s drug addition.
- The fact that Ms Campbell is receiving treatment.
- The fact that the treatment is at NA.
- Details of the treatment (i.e. frequency of attendance; length of treatment).
- The photographs of Ms Campbell outside the NA meetings.
Ms Campbell accepted (and the House of Lords agreed) that The Mirror was entitled to publish the first two categories of information in order to rebut incorrect claims made by her in public that, unlike other models, she did not take drugs.
However, the House of Lords disagreed as to how the information in categories 3 to 5 should be treated.
The majority decision
In their majority decisions, Lords Hope and Carswell, and Baroness Hale, concluded that, on these facts, Ms Campbell’s rights under Article 8 of the Convention outweighed The Mirror’s rights under Article 10.
These Law Lords placed particular emphasis on Ms Campbell’s right to privacy, because the case involved information as to Ms Campbell’s medical condition and treatment. Although The Mirror did not publish information from Ms. Campbell’s medical notes, both Lord Hope and Baroness Hale expressly equated details of therapy at NA with this kind of information. For example, Baroness Hale observed that “ the information was of exactly the same kind as that which would be recorded by a doctor on those [medical] notes: the presenting problem was addiction to illegal drugs, the diagnosis was no doubt the same, and the prescription was therapy, including the self-help group therapy offered by regular attendance at Narcotics Anonymous”. (Paragraph 146.)
The majority decisions also place particular emphasis on the fact that an individual seeking to overcome an addiction will need considerable privacy in which to do this (Lord Hope, paragraph 81) and that, where an individual seeks treatment via anonymous therapy, an infringement of privacy would adversely affect the individual’s treatment.
The Law Lords then considered what weight should be given to freedom of expression. Lord Hope and Baroness Hale, in particular, both felt that freedom of expression should be given less protection in this case. Lord Hope (paragraph 117) and Baroness Hale (paragraph 148) both distinguished between different forms of expression. The greatest weight should be given to political speech. This was followed by artistic speech and, finally, commercial publications providing details of the lives of celebrities. Because The Mirror’s article on Ms Campbell fell into the last category, the majority of the Law Lords gave less weight to Article 10 of the Convention when they balanced it against Article 8.
Finally, Lord Hope also felt that the publication of the photographs, together with their caption, was particularly intrusive: “Had it not been for the publication of the photographs and looking to the text only, I would have been inclined to regard the balance between these rights as about even”. (Paragraph 121.)
The minority decision
In their minority judgments, Lord Nicholls and Lord Hoffmann reversed the weightings given to Articles 8 and 10 of the Convention by the other Law Lords.
Lords Nicholls and Hoffmann considered that little protection should be given to the additional details of Ms Campbell’s treatment. They noted that The Mirror was entitled to publish the fact of her addiction and treatment, and considered that the additional information “ was of such an unremarkable and consequential nature that to divide one from the other would be to apply altogether too fine a toothcomb. Human rights are concerned with substance, not such fine distinctions”. (Paragraph 26.)
Further, these Law Lords did not accept that this information should be treated in the same way as information about clinical treatment and so benefit from special protection. According to Lord Nicholls:
“The brief reference to the way she was treated at the meetings did no more than spell out and apply to Miss Campbell common knowledge of how Narcotics Anonymous meetings are conducted.” (Paragraph 27.)
Similarly, Lord Hoffmann suggested that:
“The anonymity of participants and the general nature of the therapy is common knowledge. The details of her frequency of attendance (which were in fact inaccurate) could not be said to be discreditable or embarrassing. The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of the existence of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too intrusive and demeaning”. (Paragraph 60.)
Lords Hoffmann and Nicholls also put more weight on the freedom of the press under Article 10, suggesting that:
- It is legitimate for the press to add “attendant detail which added colour and conviction” (Lord Nicholls, paragraph 28); and
- The practical demands of journalism “mean that some latitude must be given” to editors in determining how to balance competing rights of privacy and freedom of expression (Lord Hoffmann, paragraph 62).
Morland J’s award to Ms Campbell of £2,500 compensation (plus £1,000 aggravated damages) was based both on breach of confidence and on breach of the Data Protection Act 1998. The Act contains a broad exemption for the processing of personal data with a view to the publication of “journalistic material” (section 32). However, Morland J concluded that The Mirror could not rely on this once an article had been published. The Court of Appeal reversed this, concluding that the press could still rely on this exemption after publication. The House of Lords, while restoring Morland J’s order, did not consider data protection at all, on the basis that it added nothing to the claim for breach of confidence (per Baroness Hale). It seems, therefore, that the Court of Appeal’s interpretation of the special purpose exemption in section 32 of the Data Protection Act is still valid.
This case is significant, not for what the Law Lords disagreed about, but for the points in common in their judgments. Although the Law Lords were split on the application of the law to these particular facts, the judgments are unanimous on the main point: that there is now a right to informational privacy under English law.
The judgment also seems to give celebrities the upper hand from now on in their dealings with the press - particularly as the majority decisions suggest that less weight should be given to freedom of expression in the case of articles about celebrities than where there are issues of political speech or literary expression.
The fact that the House of Lords was so divided on the application of the law to the facts (not only was the decision by a three-two majority, but one of the majority Law Lords, Lord Hope, admitted that he would have found Ms Campbell’s and The Mirror’s claims perfectly balanced were it not for the photos used by The Mirror) suggests that editors are likely to have a difficult time in applying the tests set out in the case.
(Case: Campbell v MGN Limited, House of Lords, 6 May 2004  UKHL 22.)
First published on the PLC website on 14 May 2004.