The House of Lords took a significant step towards greater protection for personal privacy last week in delivering their judgment in the Naomi Campbell case. The irony is that Campbell did not make a claim for invasion of privacy.
For Campbell it is a case of third time lucky. Although she won first time around, receiving damages of £3,500, the gloss was taken off that ruling by a finding that she had lied to the court. Things then came apart at the seams completely in the court of appeal where the judges recognised that public figures who were role models, let alone supermodels, had some protection for their private lives but less so than ordinary individuals. They held that as the Mirror was entitled to contradict Naomi's lie that she did not take drugs, the disclosure of further information that she was attending Narcotics Anonymous was not sufficiently significant to amount to a breach of confidence. The court of appeal also rejected the argument that publication of information about Campbell's therapy was equivalent to the disclosure of clinical details of medical treatment.
When Campbell's case came to the House of Lords it was widely assumed that they would sling it out. Such a move would have been in keeping with their decision in Wainwright vs the Home Office, a case about strip-searching and personal privacy last year in which they rejected the opportunity to formulate a free-standing law of privacy. This time the Lords have surprised everyone by holding that the unjustified publication of personal information gives a valid cause of action.
The Lords have reached this decision on the basis of human rights law rather than traditional confidentiality. It has always been awkward to fit confidentiality precedents derived from the protection of trade secrets or from Victorian disputes between master and servant to the modern circumstances of personal privacy. By shifting the emphasis away from such precedents and instead drawing on European law, the House of Lords has tried to mark out distinctive territory for personal privacy cases within the law of confidentiality. The intention here appears to be clear. From now on, the Lords hope that their ruling will be the touchstone in personal privacy actions and it will no longer be necessary to refer back to what many perceive as archaic and inappropriate decisions at a tangent from the issue of personal information. All this will still be done under the heading of confidentiality but it will be within a separate enclave of personal information.
The principles underlying the Campbell decision are the rights to respect for private and family life against the right to freedom of expression. In keeping with the first of these, the House of Lords says that human rights law identifies private information "as something worth protecting as an aspect of human autonomy and dignity". This is a different kind of language from that normally used by the House of Lords in recent similar cases. The Wainwright decision, for example, was remarkable for its lack of reference to principles whether European or natural. Although Campbell's victory was narrowly achieved by a majority of three to two, all the Lords agreed on the approach which should be taken on principle, and it is clear that they are aware that the decision has implications for the future development of the law.
Apart from the central issue of principle there are other important findings for the media. The three judges who found for Campbell have rejected the court of appeal's distinction between therapy and medical treatment from a doctor. For the House of Lords, information about a person's health and treatment for ill-health is by its nature private and confidential, and should receive the same protection as a doctor's medical notes.
The Lords also disagree with the court of appeal about the publication of photographs of Campbell outside Narcotics Anonymous in the King's Road, Chelsea. The Lords maintain that the fact that someone can be seen by any 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 those images could be far wider than incidental exposure to someone passing by. The court objects to the photographs in this case being taken deliberately and in secret with a zoom lens. They consider this to be a breach of the press complaints commission code and gross interference with her right to respect for her private family life.
In theory the PCC could have played a bigger part in this dispute, and it would have saved a fortune. The costs racked up so far are estimated to be in the millions, perhaps enhanced at some stage by a conditional fee allowing an increase of up to 100% in legal costs for a successful result. And the costs don't stop at the House of Lords: the Mirror may decide to go to the European court of human rights in Strasbourg, although it has a tough call in deciding whether to take a case to that principled forum based on such tawdry facts.
If the PCC is quick and free, and the government believes that self-regulation works - why didn't Campbell use it? The short answer is that the PCC cannot award damages or costs nor can it grant injunctions preventing publication. For these reasons it is often seen by claimant lawyers as a toothless watchdog. This may be unfair: in a privacy claim a preliminary PCC ruling in the claimant's favour can make a subsequent legal action almost indefensible for a newspaper. This is a step which Campbell's lawyers may have considered and discarded.
Less space is given in the judgment to the right to freedom of expression than to the right to privacy, although it is recognised that these are equal rights. The House of Lords makes it clear that this is not an appropriate case for the newspaper to take to the barricades of freedom of expression. Baroness Hale describes the action as "a prima donna celebrity against a celebrity-exploiting tabloid". She sets out a hierarchy of freedom of expression, ranging from political speech at the top of the list, with exposes of the weaknesses of fashionable figures somewhere off the foot of the scale. In relation to freedom of expression the Lords have said that you cannot draw points of principle out of a catfight.
There are difficulties with this approach. If this is really a trivial spat, a bucket of water could have been poured on it at first instance and fur would not have flown in the House of Lords. In the long run, the narrow finding for Campbell will be much less important than the reasoning by which it was reached. Many times during recent months the courts have turned down the chance to formulate a law of privacy, saying that this is a step which should only be taken by parliament after wide consultation and proper debate. The effect of the Campbell judgment goes against that intention. It stakes out distinctive territory for personal privacy within the traditional law of confidentiality and so extends it. While the judgment recognises the right to freedom of expression it gives little immediate benefit to the media.
· Martin Soames is media litigation partner at DLA.
