18.2.04

Protecting the Private - Naomi Campbell tries to persuade House of Lords to uphold her privacy claim

Having had her case overturned by the Court of Appeal in 2002 and faced with paying for the Daily Mirror's legal costs, Naomi Campbell has this week returned to court in a bid to persuade the House of Lords that the paper did in fact breach her privacy.

What's all the fuss about?
The Dialy Mirror ran a story about Campbell having attended a narcotics anonymous session. Campbell had previously denied doing drugs and denounced their use so when a picture landed on Piers Morgan's desk of her coming out of a narcotics anonymous meeting that was just too good an opportunity to miss.

What the Mirror says:
The story and picture prove Campbell lied about drugs and given her prominence as a public figure and charity work it is in the public interest (or, the public has a right to know) that she has been lying about drug use.

What Campbell says:
This was a gross intrusion into her private life - and therefore privacy and confidentiality - she should be allowed to attend such meetings in private and not have people know about them. The paper should not use what her QC Andrew Caldecott described as a 'candid camera' stunt and have used the picture which clearly shows where the meeting took place. Instead she should have been asked by the photographer if she minded having her picture taken and she might have said she would prefer the picture to be taken further along the road so it was not outside the narcotics anonymous meeting place - get real! - if this was how celebrity or news photographers got their pictures our papers would be much emptier and more boring.

What the court ruled first time round:
In the High Court Mr Justice Morland had ruled that in publishing the photograph and details of her treatment the Mirror had not just breached her confidentiality but also breached the Data Protection Act. She was originally awarded damages of £3,500.

What the Court of Appeal decided:
The court was not prepared to recognise her privacy in this way and saw the story as a legitimate news exposee of the fact she had lied about taking drugs. The use of the photograph and story was evidence of that and its publication was in the public interest. She was denied her damages and left with a massive legal bill.

The case before the House of Lords:
Campbell is trying to persuade the Lords that her privacy was indeed breached and that although one may be in the public eye or pass through public places en route to somewhere private that does not mean that the media should be allowed to intrude or report on matters that are confidential or 'essentially private in nature'. Her counsel Andrew Caldecott QC is therefore trying to move the case from the public interest point that she lied about drugs and the story was justified to the wider privacy issue that even though there may have been a legitimate news story the photograph of her coming out of the meeting went too far and was a breach of privacy.

This raises a number of interesting issues. Looking at privacy along defamation lines there was truth in the Mirror's story and the photograph was a necessary part of evidence to prove this. Looking at privacy from a breach of confidence or European Convention rights point of view - Campbell lied about drugs in public so such protection as should notionally be offered her in relation to confidentiality or privacy could be offset against the public interest in knowing she lied - in other words her notional right to privacy had been forfeited by virtue of her publicly lying. Looking at privacy from a purely human rights view - the UK Human Rights Act provides that public bodies must have regard to the European Convention - so protection of privacy under Article 8 is only provided for in UK law insofar as public bodies are concerned and does not extend to commercial newspapers.

Campbell is also arguing that the story and photograph was likely to deter her from attending further sessions as she may be 'inhibited'. Others attending may also have cause for complaint as they do not wish their anonymity to be compromised by her presence or publicity.

It would be trite to argue that the original story in the Mirror was not a legitimate news story and a good scoop or exposee about the fact Campbell had lied in relation to drugs. The question the House of Lords will have to decide is whether the manner in which that story was revealed or reported was such as to amount to a breach of confidence or invasion or privacy. To follow Andrew Caldecott's argument that the photographer should not have shot a covert snap but asked Campbell if she minded so she could go up the road for an impromptu picture would be unrealistic - the photo was a vital part of the story as it showed Campbell in situ and therefore backed up the story.

There is a big and fundamental difference between not being happy that the fact you take drugs and have lied about taking them and have now been caught on camera coming out of a narcotic anonymous meeting and the suggestion that this was a gross and unwarranted intrusion into Naomi Campbell's privacy.

Celebrity or not we all have a private life and hope to enjoy a reasonable expectation as to privacy.

What the House of Lords have to decide is whether 1: they are willing to accept that there is a right of privacy in the first place that the courts are willing to accept (there has been much judicial resistance to this recently in cases such as Peck or Wainwright)
2: those in the public eye can expect the same level of privacy
3: whether privacy can be forfeited through their own actions (as was decided by the Court of Appeal.

Whatever the outcome it will hopefully help clarify whether privacy is to be recognised as a stand alone right or whether the courts are still only prepared to find constructs such as breach of confidence or data protection inot which to parcel the legal treatment of privacy issues.

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