By a majority of three to two, the House of Lords has reversed the decision of the Court of Appeal (as reported in our early warning of October 2002) and reinstated the judgment of Mr Justice Morland in the High Court (see our early warning of March 2002).
The action arose from a report by the Daily Mirror (including a photograph) that Naomi Campbell was attending meetings with Narcotics Anonymous to beat her addiction to drugs, an addiction which she had previously denied. The core issue before the court was whether the publication at issue “was legitimate in that the public interest in favour of publication outweighed any public interest in the protection” of Naomi Campbell’s rights of confidentiality.
The dissenting judgments came from Lord Nicholls and Lord Hoffman. Lord Nicholls, despite finding against Ms Campbell commented: “The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it too lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well being and development of an individual.”
After observing that there was no “all embracing” cause of action for “invasion of privacy“, Lord Nicholls observed that “the time has come to recognise that the values enshrined in Articles 8 and 10 [of the European Convention on Human Rights] are now part of the cause of action for breach of confidence.” He went on to observe that “the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.” Lord Nicholls however concluded that Naomi Campbell’s privacy rights were not infringed, and dismissed the appeal.
Lord Hoffman identified the point dividing the House as a narrow one, namely whether in exposing falsehoods on the part of Ms Campbell about her use of drugs “the newspaper went too far in publishing associated facts about her private life.”
Lord Hoffman also observed that there is no general cause of action for privacy in this jurisdiction, but stressed that “the right to privacy is in a general sense one of the values, and sometimes the most important value, which underlies a number of more specific causes of action, both at common law and under various statutes“. Lord Hoffman endorsed the view expressed by the Court of Appeal when it said that when publication of confidential information is justified in the public interest, “the journalist must be given reasonable latitude as to the manner in which the information is conveyed to the public or his Article 10 right to freedom of expression will be unnecessarily inhibited.”
Like Lord Nicholls, Lord Hoffman also dismissed the appeal on the facts, while upholding the general principle that the privacy of the individual should be protected under the UK law.
Lord Hope made a strong point of the need for privacy in any battle against an addiction to drugs or alcohol. He also rejected the dismissal by the Court of Appeal of the analogy between information that Naomi Campbell was receiving therapy from Narcotics Anonymous and information about details of a medical condition or its treatment. He said that he thought that the trial judge was right to regard the details of Naomi Campbell’s attendance at Narcotics Anonymous as private information which gave rise to a duty of confidence.
Lord Hope also criticised the Court of Appeal’s approach of judging whether the disclosure of the information “would have offended the reasonable man of ordinary susceptibilities” on the mind of the reader, rather than the mind of the person who is affected by the publicity. He then looked at striking the balance between the rights according to Article 8 and Article 10 of the European Convention on Human Rights, and concluded that this infringement of Naomi Campbell’s right to privacy could not be justified in weighing those two competing rights, and allowed the appeal.
Baroness Hale conducted a balancing exercise between the Article 8 right of Naomi Campbell and the Article 10 right of the Daily Mirror. Baroness Hale drew a distinction between various types of speech, placing political speech as the most important. Here, however, the newspaper had disclosed “intimate details of a fashion model’s private life“, which they clearly regarded as a rather less public interest. She concluded by citing the Press Complaints Commission Code of Practice as it referred to privacy, and concluded that on applying these principles she should allow the appeal.
Lord Carswell also rejected the distinction made in the Court of Appeal between information concerning therapy at Narcotics Anonymous and details of the treatment of a medical condition. He considered that the decision was a delicately balanced one, but concluded that the information published concerning Naomi Campbell’s therapy at Narcotics Anonymous constituted “a considerable intrusion into her private affairs, which was capable of causing substantial distress, and on her evidence did cause it to her.” He therefore considered that the balance came down in favour of Naomi Campbell, and also allowed the appeal.
The balancing exercise between the rights of privacy and free speech conducted by the House of Lords makes the job of lawyers advising in this field extremely difficult. Two fundamental rights collide when such issues arise, and it is very often not so much a legal judgment but one of instinct and principle which will determine whether the court will intervene on an issue of privacy or not. However, as all the judges agreed, some protection for privacy is essential in the UK law, and that at least has been established by this majority decision of the House of Lords.