UK: Intellectual Property: Breach of Confidence—Misuse of Private Information

On 6 May 2004, the House of Lords handed down its judgment in the case of Campbell v MGN Limited [2004] UKHL 22 on appeal from [2002] EWCA Civ 1373. The Appellate Committee consisted of Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell. Lord Nicholls and Lord Hoffman ruled to dismiss the appeal; however Lord Hope, Baroness Hale and Lord Carswell allowed the appeal and restored the ruling of the judge of the court of first instance.

The Facts

The facts of this case were as follows. On 1 February 2001 the Mirror newspaper ran a front page article entitled "Naomi: I am a drug addict" which gave details of the super model Naomi Campbell’s attendance at Narcotics Anonymous meetings and her efforts to overcome her addiction to drink and drugs. The article referred to Miss Campbell’s efforts to rehabilitate herself, described generally Narcotics Anonymous therapy and referred to some of Miss Campbell’s recently publicised activities, including an incident when Miss Campbell was rushed to the hospital and had her stomach pumped. The judgment states that the article was generally sympathetic and supportive and perhaps slightly smug that Miss Campbell had been caught out by the Mirror. The newspaper had obtained its information either from another of Miss Campbell’s associates or a fellow addict attending Narcotics Anonymous meetings. Photographs of her attending a Narcotics Anonymous meeting had been taken by a freelance photographer who had been employed especially for the purpose and who had taken the photographs covertly from inside a parked car some distance away.

The articles were inaccurate in several ways: Naomi Campbell had been attending Narcotics Anonymous meetings in the UK and overseas for two years not three months and the frequency of her attendance was greatly exaggerated (she did not regularly go to two meetings a day, as was reported). Photographs of Miss Campbell in an easily recognisable street were of her leaving a meeting rather than arriving as stated in the article.

Miss Campbell issued proceedings against MGN Limited on the same day the articles were published. The Mirror proceeded to publish further extremely critical articles. In the proceedings Miss Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. The main basis of a claim for aggravated damages was an article published on 7 February 2001 headed "Fame on you, Ms Campbell" which reported Naomi Campbell’s plans to "launch a campaign for better rights for celebrities or "artists" as she calls them" and included the sentence: "As a campaigner, Naomi’s about as effective as a chocolate soldier."

Morland J [2003] EWHC 499 (QB) upheld Ms. Campbell’s claim and awarded her £2,500 plus £1,000 aggravated damages in relation to both claims. The Court of Appeal overturned this decision [2002] EWCA Civ 1373, [2003] QB 633.

The Issues

The case raised some interesting issues. Lord Nicholls held that in the UK there is no "over-arching, all embracing cause of action for ‘invasion of privacy’", however protection of certain aspects of privacy is fast developing in various common law jurisdictions, encouraged in the UK by the enactment of the Human Rights Act 1998. This case concerned one aspect of invasion of privacy—the wrongful disclosure of private information and demonstrates the familiar competition between freedom of expression and respect for an individual’s privacy, both of which were described by the House of Lords as vitally important, with neither taking precedence over the other.

The common law action of breach of confidence has long protected the wrongful use of private information, but the name of the action has become misleading. The essence of a breach of confidence action was originally based on improper use of information disclosed by one person to another in confidence. The relevant information had to be confidential in nature and have been disclosed by one person to another in circumstances "importing an obligation of confidence" even if no non-disclosure contract existed. The confidence referred to arose out of a confidential relationship. The House of Lords held that breach of confidence actions no longer need an initial confidential relationship for a cause of action to exist and have changed in nature.

Lord Nicholls held that the law now imposes a "duty of confidence" whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential and stated that the more natural description today is that such information is private and the essence of the tort is better encapsulated now as misuse of private information. The privacy of individuals can be invaded in ways not involving publication of information. However, in this case, the common law claim was presented exclusively on the basis of breach of confidence i.e., wrongful publication by the Mirror of private information.

This case focused on the provisions of Article 8 of the European Convention on Human Rights which concerns respect for private and family life and Article 10 which concerns freedom of expression and the interaction of these two articles. The values of Articles 8 and 10 are now part of the cause of action for breach of confidence and the rules embodied in these articles are applicable in disputes between individuals or between individuals and non-governmental bodies like newspapers, as they are in disputes between individuals and public authorities.

The Judgment

The relevant information in the Mirror article which was the subject of the appeal was divided into five categories during the case: (i) the fact of Miss Campbell’s drug addiction; (ii) the fact she was receiving treatment; (iii) the fact that she was receiving treatment at Narcotics Anonymous; (iv) the detail of the treatment—how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment and the nature of her entrance on the specific occasion; and (v) the visual portrayal of her leaving a specific meeting with other addicts. The House of Lords ultimately held that, despite the importance attaching to the right to freedom of expression required by the press to play an effective role, there was an unjustified infringement of Naomi Campbell’s right to privacy. The publication of the third, fourth and fifth elements in the article about her was an invasion of her right to privacy which entitled her to damages.

The issue of whether the information was imparted in confidence to the respondents was not disputed and it was accepted that the respondents were, in the circumstances of the case, justified in publishing the information contained in the first two categories (i.e., the facts that Naomi Campbell was a drug addict and receiving treatment for her addiction). Usually such information would be regarded as confidential, but publication in this case was held to be justified because the appellant was a famous figure who actively seeks publicity, who was described as a role model for other young women, who had consistently lied about her drug addiction and compared herself favourably with other people in the fashion industry who regularly used drugs. Because of this, Naomi Campbell was held to have forfeited the protection she would otherwise afforded and had herself made the information concerning her addiction and treatment a matter of legitimate public comment in respect of which the press were entitled to "put the record straight".

The issue to be decided was whether the respondents were allowed to publish the material included in the third, fourth and fifth categories or whether such information could not be legitimately commented on and should be treated as information received in confidence which should not have been published.

The House of Lords disagreed with the Court of Appeal’s distinction between information that the appellant was receiving therapy from Narcotics Anonymous (which they regarded as not being private) and details of the treatment of a medical condition (which they regarded as private). The House of Lords held that both types of information were private. The Court of Appeal had regarded disclosure of the information that Miss Campbell was receiving therapy from Narcotics Anonymous merely as a peripheral disclosure and held that publishing the details concerning her attendance at NA meetings was not in its context important enough to constitute a breach of the duty of confidence owed to her. The Court of Appeal (applying the "highly offensive" test first established in the Australian case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, 13) had held that a reasonable person of ordinary sensibilities, reading that the appellant was a drug addict would not find it highly offensive that the newspaper also disclosed that she was attending meetings of Narcotics Anonymous and was not of sufficient importance to justify the intervention of the court.

The House of Lords held that the publication of the details of the appellant’s course of treatment at Narcotics Anonymous and the photographs taken covertly in the street of her leaving a meeting went considerably further than publishing the fact that she was receiving therapy or involved in a course of therapy with Narcotics Anonymous. Details published included where the treatment was occurring and its frequency. This intruded into what had some characteristics of medical treatment and tended to deter her from continuing the treatment which was in her interest and also to discourage other persons attending the course from continuing when they might be concerned that their participation might be publicised. This was held to go further than a disclosure "peripheral to" the publication of the information that Miss Campbell was addicted to drugs and receiving treatment and was capable of constituting a breach of confidence.

The House of Lords stressed the fact that photographs are a powerful reinforcement to written articles and a much valued part of newspaper reporting and held that the Court of Appeal had overlooked the photographs too easily as adding little to the reports already published.

The House of Lords also held that the nature of the material published established that it was private information which attracted the duty of observing the confidence in which it was imparted to the respondents and that the respondents’ motives in publishing such information to give a sympathetic treatment to the subject did not constitute a defence if publication of material in the third, fourth and fifth categories revealed confidential material.

The House of Lords discussed the balance to be struck between Articles 8 and 10 of the European Convention on Human Rights, which they regarded as central to the case. The rights guaranteed by these Articles are qualified rights and neither right has precedence over the other. Article 8(1) protects the right to respect for private and family life, but Article 8(2) recognises the rights and freedoms of others. Article 10(1) protects the right to freedom of expression, but Article 10(2) recognises the need to protect the rights and freedoms of others. It was held that the right to privacy which is central to a breach of confidence action must be balanced against the right of the media to impart information to the public and the media’s right to impart information must be balanced against the respect to be given to private life. To justify limiting the Article 10 right to freedom of expression the restrictions imposed must be rational, fair and not arbitrary and they must not impair the right more than necessary.

The House of Lords stated that resolving this question depends on the weight given to various considerations: the extent of the appellant’s distress, the potential adverse effects on her drug therapy, the extent to which it was considered that the material in categories three, four and five went beyond that contained in the first two categories and the degree of flexibility which the press should be permitted in the way it chooses to present a story.

The House of Lords ultimately held that publication of details of Miss Campbell’s attendance at therapy by NA, reinforced by the photographs, amounted to a considerable intrusion into her private affairs capable of and actually causing substantial distress, although it was hard to determine the amount of actual harm it may have done to her progress in therapy. The publication of the article was held to create a risk of causing a significant setback to the appellant’s recovery, however, the importance of a proper degree of journalistic margin to the press, to deal with legitimate stories in its own way, without unnecessarily curtailing press freedom to publish detail and photographs which add colour and conviction to a story, were also emphasised.

Conclusion

This is the first media case to have reached the House of Lords following implementation of the Human Rights Act 1998 and is therefore significant. However, creation of a "back door privacy law" as a result of this judgment appears unlikely. This was a case concerning unusual and specific facts. Baroness Hale was of the opinion that English law could not, even if it wanted to, develop a general tort of the invasion of privacy. Nevertheless, it does appear that the extension of the existing law of breach of confidence is becoming increasingly established in English law. Future breach of confidence actions involving a misuse of private information are likely to be decided on the specific facts of each case and it appears that judicial recognition of the fact that individuals are entitled in certain circumstances to protect certain types of private information is likely to continue. Whether the publication of private information will be held to constitute a misuse of private information in any particular circumstances is likely to depend in each case on an analysis of the competing rights of the individual to a certain amount of respect for private and family life balanced against the right to freedom of expression.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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