Model Data Is Processed But Unprotected

The Court of Appeal for the first time considers the Data Protection Act 1998

Earlier this year the supermodel Naomi Campbell brought proceedings against Mirror Group Newspapers ("MGN") for breach of confidentiality and compensation under Section 13 of the Data Protection Act 1998 ("the DPA") in respect of articles and photographs published in the Daily Mirror newspaper. The articles related to the model’s drug addiction and attendance at Narcotics Anonymous meetings in circumstances where she had previously asserted that she did not take drugs. As we have commented previously, at first instance the court held that Miss Campbell was entitled to damages for breach of confidentiality and to compensation for breach of the DPA.

MGN appealed to the Court of Appeal, which on 14th October ruled in MGN’s favour. It held that the information published by the Mirror did not breach a duty of confidence owed to Miss Campbell and that, in any event, publication was justifiable in the public interest. Further, whilst the DPA applied to the publication of newspapers, MGN were entitled to rely on the exemption afforded by the DPA for journalistic purposes.

Miss Campbell had conceded that because of her previous public assertions that she did not take drugs, the Mirror was entitled to publish the fact that she was a drug addict and that she was undergoing treatment. Therefore, her claim solely related to additional information conveyed in the newspaper articles which gave details of her therapy sessions with Narcotics Anonymous and photographs which showed her outside a Narcotics Anonymous meeting.

The Court of Appeal held that these additional details were merely peripheral to the issue of her drug taking and as such their disclosure was not "sufficiently significant" to amount to a breach of duty of confidence. Further, the information published by the Mirror was justified in order to provide a factual account which had the detail necessary to carry credibility. It was part of the "journalistic package" designed to show that Miss Campbell had deceived the public by claiming that she did not take drugs. Accordingly, even if the information had been "sufficiently significant" and even though its disclosure was arguably not necessary, MGN was nevertheless entitled on public interest grounds to include it in the article.

Miss Campbell claimed compensation under section 13 DPA for the damage and distress caused to her by MGN’s breach of the DPA. MGN’s response was that the publications complained of fell outside the DPA and even if they did not, they had not breached the DPA since they enjoyed the benefit of the exemption provided by section 32.

The Court of Appeal referred to the Directive¹ to assist it in interpreting the DPA and concluded that the definition of "processing" in the DPA and the Directive was wide enough to include the publication of hard copies of documents on which personal data had been printed. Accordingly, MGN’s case depended upon the effect of section 32.

Section 32 DPA provides that personal data is exempt from certain provisions of the DPA if, inter alia, the processing of that data is undertaken with a view to the publication of journalistic material, the data controller reasonably believes that such publication is in the public interest (having regard to the special importance of the public interest in freedom of expression) and the data controller reasonably believes that, in all the circumstances, compliance with the relevant provision(s) of the DPA is incompatible with journalistic purposes.

At first instance the judge held that the reference in section 32, to "processing with a view to publication" drew a distinction between processing and subsequent publication. He concluded that section 32 protected journalists from claims in relation to the pre-publication processing of information, but there was no protection from claims for compensation once publication had taken place.

The Court of Appeal concluded that such a distinction was illogical and resulted in an undue restriction on journalistic freedom. Section 32 was available in respect of pre-publication processing, covered the act of publication itself and also remained available after publication had occurred. In this case the editor of the Mirror had honestly believed that publication was justified in the public interest and this was objectively reasonable. Accordingly, section 32 applied.

1European Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (95/46/EC)

This decision has received widespread coverage in the media, being portrayed as a major victory for the freedom of the press. The Court of Appeal’s clarification of the extent of the section 32 exemption is indeed significant. Nevertheless, it is also clear that the Court of Appeal refused to go as far as many in the media might have wanted. In particular, the Court of Appeal gave short shrift to MGN’s submission that an editor who publishes material that he knows to be confidential in the mistaken belief that this is in the public interest, will not be guilty of breach of confidence. In the Court of Appeal’s opinion, the media can fairly be expected to identify what is confidential and must accept responsibility for any decision that a particular publication is in the public interest.

This decision is also of more general interest, since this is the first time that the Court of Appeal has sought to the interpret the Data Protection Act 1998. In doing so, it criticised the Act as a "cumbersome and inelegant" piece of legislation but it is noteworthy that the Court appeared unperturbed by what it acknowledged to be its very wide ranging application.

© Herbert Smith 2002

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