The European Court of Human Rights has rejected a claim that the House of Lords' decision in Campbell v MGN Ltd  UKHL 22, that MGN Limited had breached the confidence of Naomi Campbell, violated MGN's right to freedom of expression, but has upheld MGN's claim that the requirement that it pay the claimant's success fees was a violation of that right. (MGN Ltd v UK, Application no. 39401/04, 18 January 2011.) (Free access.)
The European Court of Human Rights (ECHR) has rejected a claim that the House of Lords' decision in Campbell v MGN Limited  UKHL 22, that MGN Limited had breached the confidence of Naomi Campbell by publishing an article revealing her drug addiction, details of her treatment, and including photographs of her outside a Narcotics Anonymous (NA) meeting, violated its right to freedom of expression under Article 10 of the European Convention on Human Rights. MGN argued that the House of Lords had failed to accord sufficient weight to the editor's assessment of how much detail to publish in order to ensure the credibility of the story, in particular since Ms Campbell had accepted that the facts of her drug addiction and treatment could be published. The ECHR found that the House of Lords' had disclosed relevant and sufficient reasons, having applied the principles embodied in Article 10 to the relevant facts. It said that it found the majority's reasons, including its emphasis on the private and intimate nature of the disputed information (the treatment details and photographs), the distress caused to Ms Campbell, and its finding that the additional material was not necessary to ensure the credibility of the story, convincing. However, the ECHR upheld MGN's claim that the requirement that it pay the success fees agreed between Ms Campbell and her legal representatives as part of a conditional fee arrangement violated its Article 10 right. (MGN Ltd v UK, Application no. 39401/04, 18 January 2011.)Close speedread
The European Convention on Human Rights (the Convention) was incorporated into domestic UK law by the Human Rights Act 1998 (HRA).
Among other things, the Convention provides that everyone has the right to:
Respect for his private and family life (Article 8(1), Convention). Article 8(2) provides that this right shall not be interfered with by a public authority unless it is "in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others".
Freedom of expression (Article 10(1), Convention). Article 10(2) provides that the exercise of this right "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others, [or] for preventing the disclosure of information received in confidence ..."
The European Court of Human Rights (ECHR) may receive applications from any person claiming to be the victim of a violation of one of the rights set out in the Convention by one of the contracting parties (Article 34, Convention).
There is no law of privacy as such in the UK (Wainright v Home Office  3 WLR 1137). However, the House of Lords has held that there is a distinct action in confidence where there has been wrongful disclosure of information that was obviously private (Campbell v Mirror Group Newspapers Limited  UKHL 22) (see further below).
Shortly after the Campbell judgment, in Von Hannover v Germany (Application no. 59320/00), the ECHR took a very wide view of the notion of "private life", holding that publication of photographs of Princess Caroline of Monaco in her daily life, either on her own or with other people, fell within the scope of her private life and were not disclosable unless they could be shown to make a contribution to a debate of general interest (see Legal update, Photographs of Princess Caroline of Monaco held to infringe her right to privacy (www.practicallaw.com/5-102-8562)).
The UK courts are obliged to take into account judgments of the ECHR (section 2, HRA).
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 revealed that Ms Campbell was attending Narcotics Anonymous (NA) and contained details about the NA treatment, as well as photographs of the supermodel outside a NA meeting. Ms Campbell launched proceedings against The Mirror in which she claimed damages for, among other things, breach of confidence.
The following categories of information contained in The Mirror's article were in issue:
That Ms Campbell was a drug addict.
That Ms Campbell was receiving treatment for her drug addiction.
That Ms Campbell was receiving treatment for her drug addiction at NA.
Details of where, when, how and how often Ms Campbell was receiving such treatment.
Photographs taken of Ms Campbell leaving a NA meeting.
Ms Campbell accepted that The Mirror was entitled to publish the first two categories of information (the undisputed material) in order to rebut incorrect claims made by her in public that, unlike other models, she did not take drugs, but argued that they were not entitled to publish the information in categories 3 to 5 (the disputed material).
At first instance, Morland J concluded that The Mirror’s publication of the article breached Ms Campbell’s rights under the law of confidence ( EWHC 499). The Court of Appeal overturned Morland J’s decision, ruling that where a public figure had chosen to publish statements about private matters such as drug-taking, they could not complain when the media sought publicly to correct those statements ( EWCA Civ 1373).
The House of Lords (by a majority) reversed the Court of Appeal's decision and reinstated the order of the first-instance judge ( UKHL 22). While the House of Lords agreed on a number of important matters of principle, the Law Lords disagreed as to how the disputed material should be treated:
The majority (Lords Hope and Carswell, and Baroness Hale) held that, in respect of the disputed material, Ms Campbell's rights under Article 8 of the Convention outweighed MGN's rights under Article 10, in particular emphasising that Ms Campbell's right to privacy in this case involved information as to her medical condition and treatment, and a person seeking to overcome an addiction would need considerable privacy in which to do this.
The minority (Lords Nicholls and Hoffmann) held that little protection should be given to the disputed material given that MGN was entitled to publish the undisputed material, finding that the disputed material was unremarkable and that to divide one from the other would be to "apply too fine a toothcomb". They also put more weight on the press's Article 10 right, finding that it was legitimate for the press to add "attendant detail which added colour and conviction" (Lord Nicholls) and that the practical demands of journalism "mean that some latitude must be given" to editors in deciding how to balance competing Article 8 and 10 rights (Lord Hoffmann).
See Legal update, House of Lords reverses Court of Appeal decision in Naomi Campbell privacy case (www.practicallaw.com/0-102-7918) for a detailed report of the House of Lords' decision.
In the proceedings concerning legal costs in the Campbell case, a dispute arose over the costs of the appeal to the House of Lords, which was conducted by Ms Campbell's legal advisers pursuant to a conditional fee agreement (www.practicallaw.com/8-380-0693) (CFA). The CFA provided that, if the appeal succeeded, Ms Campbell's solicitors and counsel would be entitled to base costs as well as success fees amounting to 95% and 100% respectively. The costs claimed for the appeal to the House of Lords amounted to £594,470, comprising base costs of £288,468 and success fees of £279,981.35. The House of Lords ( UKHL 61) rejected MGN's argument that it should not be liable for Ms Campbell's costs relating to the success fee, holding that the success fee was proportionate to, and compatible with, MGN's right to freedom of expression under Article 10 of the Convention (see Legal update, House of Lords considers conditional fee arrangement in Campbell case (www.practicallaw.com/0-201-4566)).
MGN applied to the ECHR alleging that the following findings of the House of Lords in Campbell violated its right to freedom of expression under Article 10 of the Convention:
The House of Lords' finding of breach of confidence. MGN relied upon the dissenting judgments. Its main argument was that the majority of the House of Lords failed to accord sufficient weight to the editor's assessment made in good faith as to how much detail to publish in order to ensure the credibility of the story, particularly in light of Ms Campbell's previous false denials of addiction and treatment. Among other things, it argued that if there was no objection to publishing the undisputed material, there could be no objection to the publication of the disputed material, since the treatment details and photographs were anodyne once it was accepted that it was permissible to publish the undisputed material.
The House of Lords' requirement that MGN should pay Ms Campbell's success fees. Among other things, MGN complained that the total costs order was excessive because it included success fees which amounted to double the amount of the base costs of the appeals to the House of Lords, and that allowing success fees to wealthy claimants such as Ms Campbell was entirely unnecessary for the legitimate aim of CFAs of giving impecunious but deserving claimants access to justice.
The ECHR (Judge Björgvinsson partly dissenting) rejected MGN's claim that the House of Lords' finding of breach of confidence had violated its Article 10 right to freedom of expression, but upheld MGN's claim that the requirement that it pay the claimant's success fees violated that right. The ECHR's reasoning is summarised below. (This report focuses on the ECHR's reasoning regarding MGN's complaint about the House of Lords' finding of breach of confidence and only briefly considers the findings regarding success fees.)
The ECHR said that it considered that the finding of breach of confidence against MGN interfered with MGN's right to freedom of expression. The question was whether the interference was "necessary in democratic society" for the purposes of Article 8(2).
The ECHR noted that the fundamental principles relating to this question were well-established in the case law and included, among other things, that:
Freedom of expression was one of the essential foundations of a democratic society, and the exceptions to it had to be construed strictly, and the need for any restrictions established convincingly.
"Necessary" in Article 10(2) implied the existence of a "pressing social need". The contracting states to the Convention had a certain margin of appreciation in assessing whether such a need existed.
In exercising its supervisory jurisdiction, the ECHR had to look at the interference with Article 10 complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it were "relevant and sufficient" and whether it was "proportionate to the legitimate aim pursued". In doing so, the ECHR had to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.
(Lindon, Otchakovsky-Laurens and July v France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-XI.)
The ECHR set out various other additional factors of particular relevance to the ECHR's supervisory role in this case, including that:
While it was true that the methods of objective and balanced reporting could vary considerably, and that it was not for the ECHR or for the national courts to substitute its own views for those of the press (Jersild v Denmark, 23 September 1994, § 31, Series A no. 298), editorial discretion was not unbounded. The press must not overstep the bounds set for, among other things, "the protection of the reputation of ... others", including the requirements of acting in good faith and on an accurate factual basis and of providing "reliable and precise" information in accordance with the ethics of journalism (Pedersen and Baadsgaard v Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI). However, it was also incumbent on the press to impart information of public interest (De Haes and Gijsels v Belgium, 24 February 1997, § 37, Reports 1997-I), in order that it could play its vital role of "public watchdog" (Observer and Guardian v the United Kingdom, 26 November 1991, § 59, Series A no. 216).
The balancing of individual interests under Articles 8 and 10 of the Convention, which might well be contradictory, was a difficult matter and contracting states had to have a broad margin of appreciation since the national authorities were in principle better placed to assess whether or not there was a "pressing social need" capable of justifying an interference with one of the rights guaranteed by the Convention (Chassagnou and Others v France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III).
The publication of photographs and articles, the sole purpose of which was to satisfy the curiosity of a particular readership regarding the details of a public figure's private life, could not be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression called for a narrower interpretation (Von Hannover; see Background).
Although freedom of expression extended to the publication of photographs, this was an area in which the protection of the rights and reputation of others took on particular importance. Photographs appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution (Von Hannover; Hachette Filipacchi Associés v France, no. 71111/01, § 43, ECHR 2007-VII (see Legal update, ECHR rules interference with French magazine's Article 10 rights not justified (www.practicallaw.com/7-386-8419))).
The ECHR said that it had therefore examined whether the finding of a breach of confidence by the majority of the House of Lords disclosed relevant and sufficient reasons, by examining whether the standards the House of Lords applied to the assessed facts conformed with the principles embodied in Article 10 of the Convention (Lindon, Otchakovsky-Laurens and July v France).
The ECHR noted that the majority members of the House of Lords recorded the core Convention principles and case-law relevant to the case. These included, contrary to MGN's submission, the protection to be accorded to journalists as regards the techniques of reporting they adopted and decisions taken about the content of published material to ensure credibility.
The ECHR also observed that all members of the House of Lords, both minority and majority, were in agreement as to these relevant principles. Indeed, it noted that at all three instances (High Court, Court of Appeal and House of Lords) the courts had agreed on the application of those principles to the main part of the published articles. They considered Ms Campbell to be an internationally known model and celebrity. Given her prior public denials of drug use, as Ms Campbell accepted, the undisputed material was legitimately a matter of public interest and capable of being published. In making this undisputed qualitative distinction between, on the one hand, private information which Ms Campbell had already made public and which was therefore legitimately the subject of a public debate and, on the other, the additional information which she had not made public, the ECHR said that all three domestic courts reflected the same distinction underlined by the ECHR in Von Hannover, which was decided some days after the House of Lords' judgment in Campbell.
Therefore, the difference of opinion between the judges on which MGN's complaint turned concerned only the application of the Convention principles to the question of whether an interference with the editorial decision to publish the disputed material was justified under Article 10. All three domestic courts had examined this issue over a number of days and had given detailed judgments. Against this background, the ECHR considered that, having regard to the margin of appreciation accorded to decisions of national courts in this context, it would require strong reasons to substitute its view for that of the final decision of the House of Lords or, indeed, to prefer the decision of the minority to that of the majority, as MGN urged.
In fact, the ECHR said that it considered the reasoning of the majority of the House of Lords in Campbell convincing. The majority had underlined, inter alia, the intimate and private nature of the disputed material; that publication of the disputed material about Ms Campbell's treatment had been harmful to her continued treatment with NA in the UK and risked causing a significant setback to her recovery; and that the photographs had been taken covertly using a long-range lens outside her place of treatment, which would have been clearly distressing for a person of ordinary sensitivity in her position and faced with the same publicity. On the other hand, it noted that the publication of the disputed material was found by the House of Lords as not being necessary to ensure the credibility of the story, MGN itself accepting that it had sufficient information without the disputed material to publish the articles on the front page of its newspaper. Nor was it considered that there was any compelling need for the public to have this additional material, the public interest being already satisfied by the publication of the core facts of her addiction and treatment.
It was true that the minority of the House of Lords had found the disputed material to be anodyne and inconsequential, noting that it was unremarkable to add such details to the undisputed material, so that publication of the disputed material fell within the latitude accorded to journalists. However, the relevancy and sufficiency of the reasons of the majority as regards the limits on the latitude given to the editor's decision to publish the disputed material was such that the ECHR said that it did not find any reason to substitute its view for that of the majority, or to prefer the minority view.
The ECHR found that the requirement to pay the success fees was an interference with MGN's Article 10 rights which could not be justified under Article 10(2). It found that the requirement was disproportionate having regard to the legitimate aim sought to be achieved (to allow the widest public access to legal services for civil litigation), so that Article 10 had been violated because, among other things:
The depth and nature of the flaws in the CFA system in the UK, which had been highlighted by Jackson LJ's report into civil litigation costs (see PLC Article, Jackson LJ's Review of Civil Litigation Costs: Final Report (www.practicallaw.com/2-501-2596)) and various government consultations, including a subsequent Ministry of Justice consultation (see Legal update, Ministry of Justice consults on reducing CFA success fees in defamation proceedings (www.practicallaw.com/5-501-3472)), were such that the ECHR could conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the state in respect of general measures pursuing social and economic interests.
This conclusion was borne out by the facts of the case: Ms Campbell was wealthy and not in the category of persons considered excluded from justice for financial reasons, and her lawyers did not do much CFA work, which limited their potential to act for impecunious claimants with access to justice problems.
For a detailed report on the ECHR's decision in relation to success fees in this case, see Legal update, Excessive success fees in Naomi Campbell libel action (European Court of Human Rights) (www.practicallaw.com/7-504-5900).
The ECHR's decision that the House of Lords' finding of breach of confidence in respect of the disputed material did not violate MGN's right to freedom of expression may disappoint newspapers, since it suggests that the breadth of editorial discretion with regard to publication of information alleged to be private is not unlimited, even where certain private information is accepted as being in the public domain so that it was legitimately the subject of public debate. However, it is difficult to draw any concrete conclusions from the decision since much turned on the specific facts of the case, including that the undisputed material had been published and was regarded by the House of Lords majority as sufficient to give the story credibility, and that the disputed material concerned intimate and private information, and could affect Ms Campbell's recovery.
Another reason why it is difficult to draw any concrete principles from the case, beyond those already established in ECHR case law, is that the ECHR did not get involved in any detailed dissection or analysis of the House of Lord's judgments, or superimposition of its own reasoning. Instead it confined itself to exercising its supervisory jurisdiction, specifically by examining whether the majority had applied standards to the facts that were in conformity with the principles embodied in Article 10 of the Convention allowing for a margin of appreciation accorded to the national courts. Indeed, Judge Björgvinsson, partly dissenting, criticised the majority of the ECHR saying that in the decision it "simply defers to the assessment made by the domestic courts", an approach which he contrasts with:
"the 'strict scrutiny' that is usually found in this Court's case law in balancing Article 8 and Article 10 rights where the Court regularly makes its own independent assessment of the facts involved and of the application of the relevant principles to those facts and it frequently substitutes its own views for those of the domestic courts. It has been the consistent approach of this Court that it is not enough, in itself, that the domestic courts consider the relevant principles; they must also be applied correctly".
Judge Björgvinsson cites Von Hannover as an example of a case in which the court did this. He said that he would have agreed with the minority in the House of Lords that publication of the disputed material did not infringe privacy, since it merely continued the original legitimate story, so that the interference with MGN's Article 10 rights could not be justified.
Perhaps because of this alleged lack of independent assessment by the ECHR, and because of the narrow confines of the issue before the ECHR, the decision does not appear to shed any significant light on the issue of whether the House of Lords' findings in Campbell are consistent with those in Von Hannover. This is a much debated question, since the ECHR in Von Hannover did appear to take a more expansive view of what constitutes "private life" than the court in Campbell, in particular in relation to when photographs taken in public would give rise to a reasonable expectation of privacy: the House of Lords did not regard photographs of Ms Campbell taken in a public street as being inherently private information, only finding that the photographs constituted private information on the facts because they were connected to her medical condition. The ECHR did not specifically comment on the status of photographs taken in public. However, the ECHR did comment more generally that in making a distinction between private information which Ms Campbell had made public and which was therefore legitimately a subject of public debate, and additional information which she had not made public, the House of Lords had reflected the distinction made by the ECHR in Von Hannover. It also said that it found the House of Lords' reasoning convincing. Perhaps, by implication, this may suggest that the ECHR does not consider the House of Lords' decision in Campbell to be inconsistent with Von Hannover in any significant way.