With her lawyers on no-win no-fee, supermodel Ms Campbell was not the only one smiling when she finally prevailed against The Mirror over an article about her drug addiction treatment. But does the judgement clarify UK privacy laws for advertisers?
Topic: People in advertising
Who: Naomi Campbell v Mirror Group Newspapers
Where: The House of Lords
When: May 2004
We now have the final UK judgement in Naomi Campbell's battle with The Mirror over a photograph of her leaving a Narcotics Anonymous therapy group alongside an article about the drug addiction treatment she was voluntarily undergoing.
Naomi sued The Mirror for breach of confidence and breach of the Data Protection Act.
First round success
At first instance, Ms Campbell was successful. She won £2,500 damages for breach of confidence and data protection plus £1000 aggravated damages in respect of both claims. The data protection claim was based on an allegation that by publishing the article including the photograph, The Mirror was "processing sensitive personal data" about Ms Campbell and should not have done so without her explicit prior consent. Under the 1998 Data Protection Act, certain types of personal data are classified as "sensitive." These include data about a person's medical history. Any such "sensitive" data can only be processed with the individual's prior written consent and this clearly had not occurred in this case.
The Mirror then appealed that first instance judgement and in front of the Court of Appeal it was successful. The three appeal judges threw out Ms Campbell's claims and, as reported on marketinglaw, held that apart from anything else, a public interest defence contained in the Data Protection Act applied in this case.
Undaunted, Ms Campbell took her case to the House of Lords. The Lords found in favour of the supermodel by 3-2 and awarded her £3,500 damages. The parties had previously agreed the appeal should focus on breach of confidence, not data protection law. This was because they had agreed that whatever the outcome of the breach of confidence claim, the fate of the data protection claim would be the same.
The court focused on the five categories of information published by the newspaper. These consisted of the fact that Ms Campbell was a drug addict, that she was receiving treatment for her addiction, that she was getting the treatment from Narcotics Anonymous, details of the treatment including how long, how frequently and what times of day she was receiving it and finally a visual portrayal by means of a photograph of her when she was leaving the treatment location.
The majority of the Lords held that most if not all of this information related to important aspects of Ms Campbell's physical and mental health and the treatment she was receiving for it.
They held that this particular area of the law of breach of confidence relating to information of this kind, their assessment must be driven by the right to respect for private and family life which is contained in the European Convention on Human Rights, given the force of law in the UK by the Human Rights Act 2000. In the light of this, they held that confidence had been breached.
As Ms Campbell's claim was only ever framed in the law breach of confidence, not "breach of privacy", the Lords were still not in their judgement creating a separate, free standing right to recover damages for breach of privacy. What they were doing was marking out distinctive territory for personal privacy cases within the law of confidentiality.
In particular, the House of Lords disagreed with the Court of Appeal on the photograph. Although this was taken in a public place, in the Kings Road Chelsea, the fact that somebody can be seen by a member of the public in the street does not mean that pictures can be taken of them and recorded without consideration for their private life.
The circulation of the images in a newspaper is going to be substantially greater than as a result of being seen by a passer-by. The particular objection in this case was to the photographs being taken deliberately and in secret with a zoom lens. Separately, this was of course arguably a breach of the Press Complaints Commission Code, but Ms Campbell was perhaps quite rightly uninterested in pursuing her complaint through those channels.
Why this matters:
The Mirror Group has already threatened to take the case to the European Court of Human Rights, but with the departure of Piers Morgan, one of the "two towering egos" some have said this case was all about, one wonders whether there will now be quite so much enthusiasm for this.
As it stands, the judgement hardly shines a beacon of clarity on an area where there continues to be uncertainty. It takes the law of data protection in this area no further than where it was, which is that there is continuing concern that the unauthorised use of a photograph of an individual in advertising, for example, might itself be unfair processing and constitute a breach of the Data Protection Act.