Confidentiality and Data Protection Post Naomi Campbell: A Step Back From The Brink

Article by Julian Pike, Henry Sainty, Benjamin Beabey

Introduction

Recently, the Court of Appeal handed down a vitally important judgment1 for the media following the appeal by MGN Limited, publishers of The Mirror, against Mr Justice Morland's decision that the paper had breached Naomi Campbell's confidentiality/privacy and her rights under the Data Protection Act 1998 ("the Act"). The potential impact of Morland J's decision was discussed in an earlier paper2 produced by this firm in May of this year. The effect of the Court of Appeal's decision is to have turned back a tide that threatened to engulf the media, particularly in relation to Data Protection.

The appeal

MGN appealed on liability in respect of both causes of action and the award of additional damages. The essential facts of the case were that Miss Campbell was an international model who courted publicity rather than shunned it; she had gone out of her way to claim that, unlike many models, she did not take drugs - on one occasion when she entered a clinic she claimed to have done so to receive treatment for behaviour and anger management when in fact she had been there for drug abuse; The Mirror disclosed on its front page that she was receiving therapy with Narcotics Anonymous (NA), the story illustrated with photographs of her on the pavement outside the NA meeting place.

It was conceded from the outset that the paper was entitled to publish the fact that she was a drug addict and that she was receiving treatment for her addiction3. Her complaint was limited to "that by obtaining and publishing information relating to the receipt by [Miss Campbell] of treatment of her drug problem at Narcotics Anonymous [MGN] acted in breach of confidence". This important concession was made because Miss Campbell had 'mendaciously' asserted that she did not take drugs and it was legitimate for the media to correct that public statement. It was also conceded by Miss Campbell that her claim was not one brought under a free standing right to privacy - a claim not recognised by English law - but one that fell within the ambit of the law of confidence.

Basis of Confidentiality Appeal

Two principal arguments were advanced by MGN in its appeal against the breach of confidence finding:

The material the subject of complaint was too insignificant to attract the law of confidentiality, made more so by the fact that certain details were incorrect; and

The Mirror's right in the public interest to publish the fact of Miss Campbell's addiction and her receiving treatment extended to include the right to publish details in relation to that treatment.

Confidentiality

The Court of Appeal followed Morland J's approval of the test of confidentiality laid down in Lenah4, namely:

"The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private"

but found that the additional information published about Miss Campbell's treatment was not confidential. The Master of the Rolls, giving the Court's judgment, held that since it was legitimate for The Mirror to publish the fact of the addiction and that she was receiving treatment, it was not particularly significant that reference was made to the treatment consisted of attending NA. The fact that Miss Campbell could not claim anonymity there was significant. The Court also dismissed the notion that a person of ordinary sensibilities would conclude that the disclosure of her attending NA was 'highly offensive' or even offensive given what had been conceded as rightly publishable. The covert photographs that might have been thought to be offensive were not the subject of particular complaint. In short, details of Miss Campbell's attendance at NA was 'insignificant' compared with the central fact that she was receiving treatment for drug addiction, distinguishing in the process Miss Campbell's attendance at NA from disclosure of clinical details.

Public Interest

As for the public interest in publishing the peripheral details surrounding her drug...