(back to preceding text)

    127.  Even the judges know who Naomi Campbell is. On 1 February 2001, the Daily Mirror published a front-page article under the headline 'Naomi: I am a drug addict'. This did not refer to any public confession she had made. The Mirror had discovered that she was attending meetings of Narcotics Anonymous. It knew enough about those meetings to construct an article based on what would have gone on there. It had also discovered that this had been going on for some time and that on the day in question she had been to two meetings at different places in London. The front-page article had a small picture of her emerging from the first meeting. The fuller article spread across pages 12 and 13 had a larger picture of her and others outside a building with a prominent café signboard in the foreground. The others' faces were pixillated. The article gave a full account of her history of difficult behaviour but was sympathetic to her attempts to 'beat the demons that have been haunting her.' It quoted anonymous friends of hers, and acknowledged both the seriousness of her commitment to therapy and the fragility of her state of recovery.

    128.  The original source of the story was either a fellow sufferer attending NA meetings or a member of Miss Campbell's staff or entourage. The Mirror had sent along a photographer in the hope of catching her outside the meeting. This done, the editor rang her agent the evening before publication. He pretended that the photographer had happened to be in the street when he saw Miss Campbell coming out of a shop and followed her to the meeting. The agent told the editor that she had 'no comment' but that NA was a 'medical thing' and that it would be 'morally wrong' to publish it.

    129.  At trial and ever since, however, it has been accepted that the Mirror was entitled to publish the fact that Miss Campbell was a drug addict and was having therapy. She had publicly denied any involvement with illegal drugs, in particular in a television interview after an admission to a clinic in America in 1997, and the paper was entitled to put the record straight. It was also entitled, even obliged, to balance that disclosure with the fact that she was addressing the problem by having therapy. But, it was argued, the paper was not entitled to disclose that she was attending meetings of Narcotics Anonymous, or that she had been doing so for some time and with some frequency. Nor was it entitled to illustrate the story with covert photography of Miss Campbell in the company of other participants in the meeting.

    130.  Proceedings for breach of confidence and infringement of privacy were issued that same day. At trial only the former was pursued (along with a claim under the Data Protection Act 1998 which it is agreed adds nothing to the claim for breach of confidence). The judge held that the information 'giving details that [her treatment] was by regular attendance at NA meetings' clearly bore the badge of confidentiality. The details were obtained surreptitiously, assisted by covert photography when Miss Campbell was engaged, deliberately 'low key and drably dressed', in the private activity of therapy to advance her recovery from drug addiction. Given the source, they must have been imparted in circumstances importing an obligation of confidence. Publication was to her detriment. It was, viewed objectively, likely to affect adversely her attendance and participation in therapy meetings. Although the disclosure of her addiction and previous lying denial caused her 'considerable' distress, publication of the details about her sessions with NA caused her 'significant' distress. Article 8 was thus engaged and striking the balance with Article 10 she was entitled to a remedy.

    131.  The Court of Appeal reversed this decision. Given what it was accepted could be disclosed, the 'peripheral details' about her attendance at NA were part of the 'journalistic package' adding colour and credibility to the story without increasing the breach of confidence. As complaint could not be made about the taking of the photographs, their publication added nothing.

    The basic principles

    132.  Neither party to this appeal has challenged the basic principles which have emerged from the Court of Appeal in the wake of the Human Rights Act 1998. 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 a 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, as Lord Woolf CJ held in A v B plc [2002] EWCA Civ 337, [2003] QB 195, 202, para 4:

"[Articles 8 and 10] have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court's approach to the issues which the applications raise has been modified because, under section 6 of the 1998 Act, the court, as a public authority, is required not to 'act in a way which is incompatible with a Convention right'. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of these articles."

    133.  The action for breach of confidence is not the only relevant cause of action: the inherent jurisdiction of the High Court to protect the children for whom it is responsible is another example: see In re S (a child) (identification: restrictions on publication) [2003] EWCA Civ 963[2003] 3 WLR 1425. But the courts will not invent a new cause of action to cover types of activity which were not previously covered: see Wainwright v Home Office [2003] 3 WLR 1137. Mrs Wainwright and her disabled son suffered a gross invasion of their privacy when they were strip-searched before visiting another son in prison. The common law in this country is powerless to protect them. As they suffered at the hands of a public authority, the Human Rights Act would have given them a remedy if it had been in force at the time, but it was not. That case indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.

    134.  This begs the question of how far the Convention balancing exercise is premissed on the scope of the existing cause of action. Clearly outside its scope is the sort of intrusion into what ought to be private which took place in Wainwright. Inside its scope is what has been termed the protection of the individual's informational autonomy' by prohibiting the publication of confidential information. How does the scope of the action for breach of confidence accommodate the Article 8 rights of individuals? As Randerson J summed it up in Hosking v Runting [2003] 3 NZLR 385, 403, para 83 at p 403:

"[The English Courts] have chosen to develop the claim for breach of confidence on a case by case basis. In doing so, it has been recognised that no pre-existing relationship is required in order to establish a cause of action and that an obligation of confidence may arise from the nature of the material or may be inferred from the circumstances in which it has been obtained."

The position we have reached is that the exercise of balancing article 8 and article 10 may begin when 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. That is the way in which Lord Woolf CJ put it in A v B plc, at paras 11(ix) and (x) (in which he also referred to the approach of Dame Elizabeth Butler-Sloss P in Venables v News Group Newspapers Ltd [2001] Fam 430). It is, as I understand it, also the way in which it is put by my noble and learned friends, Lord Nicholls of Birkenhead (at paragraph 21) and Lord Hope of Craighead (at paragraph 84) in this case.

    135.  An objective reasonable expectation test is much simpler and clearer than the test sometimes quoted from the judgment of Gleeson CJ in the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13, para 42, that 'disclosure or observation would be highly offensive to a reasonable person of ordinary sensibilities'. It is important to set those words in their full context, bearing in mind that there is no constitutional protection of privacy in Australia:

"There is no bright line which can be drawn between what is private and what is not. Use of the term 'public' is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private."

    136.  It is apparent, therefore, that the Chief Justice did not intend those last words to be the only test, particularly in respect of information which is obviously private, including information about health, personal relationships or finance. It is also apparent that he was referring to the sensibilities of a reasonable person placed in the situation of the subject of the disclosure rather than to its recipient.

    137.  It should be emphasised that the 'reasonable expectation of privacy' is a threshold test which brings the balancing exercise into play. It is not the end of the story. Once the information is identified as 'private' in this way, the court must balance the claimant's interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail.

    138.  The parties agree that neither right takes precedence over the other. This is consistent with Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe, para 10:

"The Assembly reaffirms the importance of everyone's right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value."

    139.  Each right has the same structure. Article 8(1) states that "everyone has the right to respect for his private and family life, his home and his correspondence". Article 10(1) states that "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 authorities and regardless of frontiers. . . . " Unlike the article 8 right, however, it is accepted in article 10(2) that the exercise of this right 'carries with it duties and responsibilities.' Both rights are qualified. They may respectively be interfered with or restricted provided that three conditions are fulfilled:

(a)  The interference or restriction must be 'in accordance with the law'; it must have a basis in national law which conforms to the Convention standards of legality.

(b)  It must pursue one of the legitimate aims set out in each article. Article 8(2) provides for "the protection of the rights and freedoms of others". Article 10(2) provides for "the protection of the reputation or rights of others" and for "preventing the disclosure of information received in confidence". The rights referred to may either be rights protected under the national law or, as in this case, other Convention rights.

(c)  Above all, the interference or restriction must be "necessary in a democratic society"; it must meet a "pressing social need" and be no greater than is proportionate to the legitimate aim pursued; the reasons given for it must be both "relevant" and "sufficient" for this purpose.

    140.  The application of the proportionality test is more straightforward when only one Convention right is in play: the question then is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other. As each is a fundamental right, there is evidently a "pressing social need" to protect it. The Convention jurisprudence offers us little help with this. The European Court of Human Rights has been concerned with whether the state's interference with privacy (as, for example, in Z v Finland (1997) 25 EHRR 371) or a restriction on freedom of expression (as, for example, in Jersild v Denmark (1994) 19 EHRR 1, Fressoz and Roire v France (2001) 31 EHRR 2, and Tammer v Estonia (2001) 37 EHRR 857) could be justified in the particular case. In the national court, the problem of balancing two rights of equal importance arises most acutely in the context of disputes between private persons.

    141.  Both parties accepted the basic approach of the Court of Appeal in In re S [2003] 3 WLR 1425, 1451-1452, at paras 54 to 60. This involves looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each. The parties in this case differed about whether the trial judge or the Court of Appeal had done this, the appellant arguing that the Court of Appeal had assumed primacy for the Article 10 right while the respondent argued that the trial judge had assumed primacy for the Article 8 right.

    Striking the balance

    142.  The considerations on each side in In re S were of an altogether more serious order than those in this case. On the one hand was respect for the private and family life of a little boy who had had his whole world turned upside down by the death of his older brother allegedly at the hands of his mother. He faced having to live and go to school with daily publicity about the most intimate details of his family life over the several months while his mother was being tried for his brother's murder. That publicity would include the names and photographs of both his mother and his brother from which he could readily be identified. There was psychiatric evidence of the harm which he was likely to suffer as a result. This would include not only the further increase in the already much heightened risk of mental illness in adulthood but also the harm to his relationship with his mother, which on any view was important to his continuing health and development. On the other hand was the public interest in the free reporting of murder trials. This is not only important in itself, as a manifestation both of freedom of expression and of freedom to receive information. It is also an essential component in a fair trial (albeit one which this accused was more than willing to relinquish for the sake of her surviving son) and in securing that justice is done in the open and not in secret, so that the public can have confidence in the system both in general and in the particular case. In In re S it was also possible to consider how the interference with each right might be minimised by tailoring the restrictions to meet the case: it was not an 'all or nothing' question.

    143.  No one can pretend that the interests at stake on either side of this case are anywhere near as serious as the interests involved in Re S. Some might even regard them as trivial. Put crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other. Both are assumed to be grown-ups who know the score. On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful. On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies. This sort of story, especially if it has photographs attached, is just the sort of thing that fills, sells and enhances the reputation of the newspaper which gets it first. One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all. It may be said that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country. It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression.

    144.  Examined more closely, however, this case is far from trivial. What is the nature of the private life, respect for which is in issue here? The information revealed by the article was information relating to Miss Campbell's health, both physical and mental. Drug abuse can be seriously damaging to physical health; indeed it is sometimes life-threatening. It can also lead to a wide variety of recognised mental disorders (see The ICD-10 Classification of Mental and Behavioural Disorders, WHO 1992, F10 - F 19). Drug addiction needs treatment if it is to be overcome. Treatment is at several levels. There is the quick 'detox' to rid the body of the harmful substances. This will remove the immediate physical danger but does nothing to tackle the underlying dependence. Then there is therapy aimed at tackling that underlying dependence, which may be combined with a transfer of the dependence from illegal drugs to legally prescribed substitutes. Then there is therapy aimed at maintaining and reinforcing the resolve to keep up the abstinence achieved and prevent relapse. This is vital. Anyone who has had anything to do with drug addiction knows how easy it is to relapse once returned to the temptations of the life in which it began and how necessary it is to try, try and try again to achieve success.

    145.  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. As the European Court of Human Rights put it in Z v Finland (1997) 25 EHRR 371, 405, para 95:

"Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community."

    146.  The Court of Appeal in this case held that the information revealed here was not in the same category as clinical medical records. That may be so, in the sense that it was not the notes made by a doctor when consulted by a patient. But the information was of exactly the same kind as that which would be recorded by a doctor on those 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.

    147.  I start, therefore, from the fact - indeed, it is common ground - that all of the information about Miss Campbell's addiction and attendance at NA which was revealed in the Daily Mirror article was both private and confidential, because it related to an important aspect of Miss Campbell's physical and mental health and the treatment she was receiving for it. It had also been received from an insider in breach of confidence. That simple fact has been obscured by the concession properly made on her behalf that the newspaper's countervailing freedom of expression did serve to justify the publication of some of this information. But the starting point must be that it was all private and its publication required specific justification.

    148.  What was the nature of the freedom of expression which was being asserted on the other side? There are undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals' potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value. No doubt there are other kinds of speech and expression for which similar claims can be made.

    149.  But it is difficult to make such claims on behalf of the publication with which we are concerned here. The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model's private life. However, there is one way in which the article could be said to be educational. The editor had considered running a highly critical piece, adding the new information to the not inconsiderable list of Miss Campbell's faults and follies detailed in the article, emphasising the lies and hypocrisy it revealed. Instead he chose to run a sympathetic piece, still listing her faults and follies, but setting them in the context of her now-revealed addiction and her even more important efforts to overcome it. Newspaper and magazines often carry such pieces and they may well have a beneficial educational effect.

    150.  The crucial difference here is that such pieces are normally run with the co-operation of those involved. Private people are not identified without their consent. It is taken for granted that this is otherwise confidential information. The editor did offer Miss Campbell the opportunity of being involved with the story but this was refused. Her evidence suggests that she was concerned for the other people in the group. What entitled him to reveal this private information about her without her consent?

    151.  The answer which she herself accepts is that she had presented herself to the public as someone who was not involved in drugs. It would have been a very good thing if she were not. If other young women do see her as someone to be admired and emulated, then it is all to the good if she is not addicted to narcotic substances. It might be questioned why, if a role model has adopted a stance which all would agree is beneficial rather than detrimental to society, it is so important to reveal that she has feet of clay. But the possession and use of illegal drugs is a criminal offence and a matter of serious public concern. The press must be free to expose the truth and put the record straight.

    152.  That consideration justified the publication of the fact that, contrary to her previous statements, Miss Campbell had been involved with illegal drugs. It also justified publication of the fact that she was trying to do something about it by seeking treatment. It was not necessary for those purposes to publish any further information, especially if this might jeopardise the continued success of that treatment.

    153.  The further information includes the fact that she was attending Narcotics Anonymous meetings, the fact that she had been doing so for some time, and with some regularity, and the photographs of her either arriving at or leaving the premises where meetings took place. All of these things are inter-related with one another and with the effect which revealing them might have upon her. Revealing that she was attending Narcotics Anonymous enabled the paper to print the headline 'Naomi: I am a drug addict', not because she had said so to the paper but because it could assume that she had said this or something like it in a meeting. It also enabled the paper to talk about the meetings and how she was treated there, in a way which made it look as if the information came from someone who had been there with her, even if it simply came from general knowledge of how these meetings work. This all contributed to the sense of betrayal by someone close to her of which she spoke and which destroyed the value of Narcotics Anonymous as a safe haven for her.

    154.  Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one's own image: cf Aubry v Editions Vice-Versa Inc [1998] 1 SCR 591. We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it. (This was the view of Randerson J in Hosking v Runting [2003] 3 NZLR 385, which concerned a similarly innocuous outing; see now the decision of the Court of Appeal, 25 March 2004.)