Campbell v Mirror Group Newspaper Ltd - Case Study Example

The House of Lords’ judgment in Campbell v Mirror Group Newspapers Ltd. is significant as it distinguishes between concepts of confidentiality and privacy within the context of both the Data Protection Act 1998 and the Human Rights Act. The judgment also balances the right to freedom of expression against the right to privacy and/or confidentiality as contained in the Data Protection Act 1998, the Human Rights Act 1998 and the European Convention of Human Rights. Striking a balance between the right to privacy and freedom of expression was perhaps complicated by the fact that the complainant in Campbell’s case was an international celebrity and as such lived her life under public scrutiny. In the final judgment the House of Lords noted the words of Lord Wolf in A v B and C when he said, ‘for our part we would observe that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media. We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.’1 The facts of the case are necessary for an appreciable understanding of this pronouncement. Following the publication of articles with accompanying photographs showcasing model Naomi Campbell’s therapy and attendance at Narcotic’s Anonymous meetings, Campbell filed a complaint in the High Court for damages for invasion of privacy. The High Court found in her favor. On appeal to the Court of Appeal the High Court’s judgment was reversed and the Court of Appeal found that on the facts, ‘that since Ms Campbell had courted publicity and gone out of her way to promote a drug-free media image, the Mirror was entitled to put the record straight, irrespective of the methods it used to uncover the story. The Appeal Court judges decided that "therapy" did not qualify for legal protection in the same way as treatment by a doctor, and that publication of the details of Ms Campbells therapy was necessary to lend the story credibility.’2 On appeal to the House of Lords, the Court of Appeal’s findings were rejected and the High Court’s ruling was upheld. The House substantiated its findings by striking a balance between privacy and freedom of expression as contained in Articles 8 and 10 of the European Convention on Human Rights. 3 Lord Hope, in delivering his opinion for the House of Lords said of the Court of Appeal’s findings, ‘they were ... in error ... when they were asking themselves whether the disclosure would have offended the reasonable man of ordinary sensibilities …The mind that has to be examined is that, not of a reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced the same publicity.’4 The House of Lords went on to point out that Ms. Campbell complained that she felt a compulsion to discontinue her treatment when she read the articles. Marcus Turle notes that the House of Lords’ ruling makes it mandatory for the consideration of this kind of evidence in assessing the individual breach of privacy complained of. He said that ‘every case must intrinsically turn on its facts because one of the main determinants will be the physical and mental health of the claimant, as well as his or her public status or position.’5 With this kind of guideline, each case will be determined on its own merits and special circumstances. In order for the courts to function realistically it is necessary for them to maintain a measure of flexibility, as cases are rarely exactly the same.6 The difficult arises when there are those who wish to hide behind the privacy issue in order to mute ‘some uncomfortable truths – truths which, in the interests of our democratic way of life, should be exposed.’7 The media should be entitled to expose these truths. However, there will be times when the media abuses this right to expose truths and Turle is of the opinion that the consequences of the Campbell ruling by the House of Lords is the provision of a good safeguard against this type of unjustified intrusive media coverage.8 The House of Lords readily acknowledged that unlike the United States of America, the United Kingdom does not have the exhaustive protection against invasion of privacy and remedies in respect of breaches thereof. However, with the passing into law of the Human Rights Act 1998, there has been ‘protection of various aspects of privacy’ which until recently ‘is a fast developing area of the law.’9 Lord Nicholls of Brickenhead, summed up the importance of the Campbell decision in the context of developing the laws relating to privacy within the United Kingdom when delivering the opinion of the House of Lords. Lord Nicholls noted that the European Convention on Human Rights as well as the Strasbourg jurisprudence has been the primary influence in the British Courts with regards to this area of the law. However, the overlapping of Articles 8 and 10 of the European Convention on Human Rights ‘have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present.’10 There is no doubt that the two articles contemplate interests of others that are diametrically opposed. Lord Nichols, went on to point out that the court is duty bound to test ‘the common law against the values encapsulated in these two articles.’11 Lord Nicholls went on to observe that the time for accepting that the cause of action or remedies afforded by the provisions of Articles 8 and 10 are to be found in remedies for a breach of confidentiality is now. The result of this distinction, Lord Nichols explained creates an entirely different approach to the question of privacy and the freedom of expression conflict. Previously, all the court had to do was to satisfy itself, ‘whether the published information engaged article 8 at all by being within the sphere of the complainants private or family life’.12 Now, in balancing the interest to be served by both Articles, the correct question to be asked is ‘whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.’13 The right to privacy is an area in which the English courts and legislators must develop. This right has already found its way into the English courts and a more determined and aggressive approach to its intrinsic value is required by the ‘English Legal System’.14 The adaptation of the right to privacy as encompassed by Article 10 of the European Convention of Human Rights by the Human Rights Act makes this development more imperative than ever before.15 Singh and Strachan are both adamant that the time is now right for the English legislators to take the reigns and follow the example set by the House of Lords in Campbell’s case. There is definitely a need to recognize and codify the right to privacy laws so as to make the laws consistent with the provisions of the European Convention on Human Rights. The learned barristers (Singh and Strachan) stated that ‘it is apparent from the emerging case law that the Courts have embarked upon the process of developing the law of privacy. It is submitted that the English common law system is, in principle, well capable of nurturing that development to provide protection which would fully reflect the rights enshrined in’ the relevant articles of the European Convention on Human Rights.16 Even Lord Hoffman, a dissenting judge among the House of Lords in the Campbell case was moved to point out the need for protection of privacy. He said, ‘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’.17 The most important consequence of the House of Lords in the Campbell case is the obvious shift in the tide. As David McKie so rightfully observed, ‘the debate for the media and those seeking to protect their privacy has, however, generally been focused on the direct clash between two competing rights: article 8 (right to respect for private and family life) and article 10 (right to freedom of expression).’18 Typically, the media would win the debates in court as ‘freedom of expression’ seems to have more persuasive value. The result of the Campbell case, however, has shifted the balance somewhat and urges the media to proceed with caution when intruding upon the private lives of others when creating stories about the individual’s private lives. Mckie, points out, that the House of Lords was very careful to adhere to the old notion of ‘breach of confidentiality’ as opposed to invasion of privacy. Be that as it may, Campbell is ‘probably the closest we have ever been to having a law of privacy in the UK’.19 Mckie also warns that there is no way of telling whether this slight shift toward a law of privacy is sustainable, perhaps the next big case will have the old law reinstated and Campbell’s ruling rejected. But for the present, the English Legal System appears to be prepared to venture into the arena of the development of a system of laws in relation to the concept of privacy. Bibliography Campbell v Mirror Group Newspaper Ltd. 2004 UKHL http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/campbe-1.htm Viewed November 16, 2006 European Convention on Human Rights www.leeds.ac.uk/law/hamlyn/echr.htm Viewed November 16, 2006 Legal Updates. Media Law: Campbell v MGN Limited (No 2) [2005] UKHL 61 . The Law Gazette. Novemer 3, 2005 McKie, David. Private Lives in Public. The Journal. August 2004 Naomi Campbell Wins Privacy Appeal in House of Lords. Outlaw. 06/05/04 http://www.out-law.com/default.aspx?page=4515 Viewed November 16, 2006 Singh, Rabinder Q.C. and Strachan, James. Select Committee on Sports, Culture and Media. Fifth Report. http://www.publications.parliament.uk/pa/cm200203/cmselect/cmcumeds/458/45802.htm#evidence Viewed November 16, 2006 Tryhorn, Chris. Mirror Warns of Threat to Freedom of Speech. Guardian Unlimited. October 20, 2005 Tugendhat and Christie The Right to Privacy in English Law [2002] EHRLR 129 Turle, Marcus. Privacy and the Press After Naomi Campbell v Mirror Group. http://lawzone.thelawyer.com/cgi-bin/item.cgi?id=110191 Viewed November 16, 2006 The Data Protection Act, 1998 The Human Rights Act 1998 Read More