Campbell v Mirror Group Newspapers (MGN) [2004]

English Tort Law

Campbell v Mirror Group Newspapers (MGN) [2004]
‘Recycle’ by Steve Mills

Convention principles and the juxtaposition between public interest and individual  privacy lie central to a clamant’s case when the needs of a known supermodel are considered secondary to the public knowledge of her drug addiction, thus sparking fierce debate as to where the lines of journalistic privilege and private health ought to be drawn.

Following the appellant’s prolonged public denial, she was rushed to hospital for emergency treatment in what was described as an allergic reaction to antibiotics, however a few months later the appellant was photographed outside a known ‘Narcotics Anonymous’ venue before a newspaper article included a number of those images under the title ‘Naomi: I am a drug addict’, in which the publication revealed that despite  repeated protests the appellant was in fact a long-term narcotics user, and that in a battle to overcome her addiction she had enrolled into a self-help programme. 

Unfortunately one of the images had captured the sign of a well-known café, thereby allowing readers to know where she may be found, while the article text revealed how often she might be attending, while prior to its release the newspaper editor had contacted the appellant’s agent, whereupon they were told that the images proved a violation of the appellant’s right to privacy and confidentiality in relation the anonymous nature of her chosen therapy, and yet the respondents ran the story and litigation followed soon after. 

In the first hearing the appellant claimed for breach of confidence and sought damages under the Data Protection Act 1998, whereupon she was awarded a total of £3,500, after which the Court of Appeal reversed and discharged the award before the House of Lords examined art.8(2) of the Human Rights Act 1998, which reads that:

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, of for the protection of the rights and freedoms of others.”

And art.10(2), which reads that:

“The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalities 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 protections of the reputation or rights of others, for preventing the disclosure of information received in confidence, of for maintaining the authority and impartiality of the judiciary.”

While noting how in Attorney-General v Guardian Newspapers Ltd (No 2) they had held that:

“[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.”

Before the House further noted how clause 3(i) of the Editors’ Code of Practice of the Press Complaints Commission provides that:

“(iii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.”

However the House also referred to Bladet Tromsø and Stensaas v Norway, in which the European Court of Human Rights had held that:

“Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest.”

Which was a position concurrent with s.12(4) of the HRA 1998, which reads that:

“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the pubic interest for the material to be published; (b) any relevant privacy code.”

And so by embracing both elements to the argument the House upheld the appeal on grounds that clandestine nature of ‘Narcotics Anonymous’ protected the needs and identities of those attending, thus when the respondents gained unauthorised access to the appellant’s treatment, they did so in the knowledge that it represented no less than a violation of her art.8 rights, whereupon the House reminded the parties that:

“Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court.”

Attorney-General v Jonathan Cape Ltd [1976]

English Constitutional Law

Attorney-General v Jonathan Cape Ltd  [1976]
‘An Interesting Book’ by Claude Raguet Hirst

Public interest, national security and the freedom of speech are key ingredients to a ‘united kingdom’, therefore should any one of those elements become endangered any true sense of democracy would be diminished in favour of state control, and so when a Cabinet Minister chose to keep an open diary of his time in government, he did so on the pretence that it would one day become a published series for public reading. 

Upon retirement the now deceased author had endowed his executors the rights to attain full publication with the support of the Treasury solicitors, whereupon they did so in the hope of releasing sections of the first volume through a leading national newspaper, and while there was an initial collaboration between the executors and the Secretary of the Cabinet, numerous demands to remove what was considered critical text dissolved the partnership into legal argument and subsequent litigation. 

In the first instance the Attorney-General issued a writ preventing publication on grounds of conventional breach of confidence and national safety, while in a second writ the newspapers were subjected to the same restrictive terms in order to cease printing and publishing the planned articles.

In the lower courts the claimants argued that history demonstrated how current and former Ministers served the country in the knowledge that any official discourse was considered secret, and that where permitted for public release such information was typically held to a thirty-year restraining period, while the respondents countered that any information contained within the compiled material was now over a decade old and so posed no real threat to either national stability or the ongoing operational integrity of the Cabinet.

When submitted before the Court of the Queen’s Bench, the court held that the burden of proof rested upon the claimants, and so held that it must be proven beyond any reasonable doubt that: 

1. A breach of confidence had occurred.

2. Public interest required the repression of information.

3. Any need for public disclosure was insufficient to stand against non-publication. 

And so given time to consider the arguments presented it was agreed that despite strong supposition on the part of the Attorney-General, there had been sufficient examination of the final and edited source material to prevent any interference by the court, and that with an appreciation of free speech and the transparency of the author’s intentions, the respondents were free to both publish the first volume and release the preceding articles as and when time permitted, while clarifying to the court that:

“[T]here may be no objection to a Minister disclosing (or leaking, as it was called) the fact that a Cabinet meeting has taken place, or, indeed, the decision taken, so long as the individual views of Ministers are not identified.”