Balancing Privacy and Press Freedom

This assignment delves into the landmark case of Campbell v MGN Ltd, examining the conflict between an individual's right to privacy (Article 8 of the European Convention on Human Rights) and the press's freedom of expression (Article 10). It analyzes how the court balanced these competing rights in Miss Campbell's case, where details about her drug addiction treatment were published by the Mirror newspaper. The assignment explores key legal arguments, precedents, and the ultimate decision regarding the infringement of Miss Campbell's privacy.

Running head: LAW ASSIGNMENT
Law Assignment
Name of the Student
Name of the University
Author Note

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Part A
Case Brief
Name of the Case: Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22
Name of the parties: Naomi Campbell (claimant) v Mirror Group Newspapers Ltd
(respondent)
Name of the Court: House of Lords
Judges: Lord Nicholls of Birkenhead, Lord Hoffman, Lord Hope of Craighead,
Baroness Hale of Richmond and Lord Carswell.
Facts of the case: Famous model Campbell was addicted to drugs and was undergoing
treatment through attending Narcotics Anonymous (NA) meetings; ”Mirror” newspaper
exposed Campbell’s activity of receiving addiction treatment in the NA meeting by
photographing covertly. The defendant newspaper published articles disclosing about
her drug addiction and that she was receiving therapy treatment with the help of a ‘self-
help’ group. The photograph showed her in a street where she was leaving after a
group meeting. The photograph was accompanied with an article providing details about
the schedule of the group meetings she attends for the therapy. Campbell claimed
damages for breach of confidentiality against the newspaper.
Legal issues:
(1) How to strike a balance between the right to privacy under Article 8 and right to
freedom of expression under Article 10 of ECHR in the following case
(2) What is the legal basis for claiming breach of confidentiality?
Part B
The essay deals with the interpretation of the right to privacy and right to freedom of
expression in the context of Naomi Campbell. The present case revolves around the
known completion that prevails between the right to privacy and freedom of expression

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stipulated under Article 8 and Article 10 of the ECHR respectively. Article 8 requires
every person to recognize and respect the family and private life of other persons
subject to an exception where such intrusion is justifiable if it purports to safeguard the
freedoms and rights of other persons. Article 10 recognizes the freedom of expressions
but restricts such freedom when it comes to protection of rights of other persons. When
both these articles are involved, it may give rise to the question of proportionality. The
essay discusses about the issues in question in the present case, which revolves
around Article 8 and Article 10 of the ECHR. It further involves determination of the fact
whether the published information falls within the scope of article 8, breaching privacy
and family life. While determining the issue the courts have applied the benchmark test
to determine whether the claimant had reasonable expectation of privacy with respect to
the disclosed information.
In the Campbell’s case, Lord Hoffmann applied various approaches while dealing
with the issues involved in the case. Most of the judges held that the act amounted to
breach of confidence but they also held that the basis for initiating the legal action was
the protection of private information. Under such circumstances, Article 8 of the ECHR
shall become applicable if the person disclosing the information had the knowledge or
should have known that the information in question was reasonably expected to be kept
as confidential1.
The court shall extend protection to the personal information about the individuals if
it is established that privacy was reasonable expected in relation to such information.
However, although the courts have not explicitly considered the question whether a
person can reasonable expect their information to be kept confidential in public.
Precedents have made it clear that confidentiality cannot be expected from information
that has reached the public domain as was observed in Coco v Clark (Engineers) LTD
[1969] RPC 412. The court held that any matter that is considered as public property
and public knowledge, the disclosure of the same cannot be deemed as breach of
confidence.
1 McHarg, Aileen. "Human rights: would our rights be better protected in or out of Europe?." (2016): 64-
68.
2 [1969] RPC 41.

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The question to determine here is when information shall be considered to be in the
‘public domain’. The courts restricted the concept of public domain by asserting that
such information that is known to significant number of people shall be considered to be
in the public domain. In Lennon v News Group Ltd and Twist, the court broadly
construed the concept of public domain as any personal information that the claimant
had discussed the matter in public.
In regards to the issue of balancing Article 8 and Article 10 of ECHR in the
Campbell’s case, the judge contended that the law must extend to protect the privacy
rights because of the incorporation of the Convention rights by the Human Rights Act.
The Campbell’s case involves a right to privacy, which is dealt under Article 8 of the
European Convention of Human Rights. Article 8 protects the privacy and family life
of every person and the privacy should be respected provided intrusion of such right is
permissible to safeguard other right and freedoms of other individuals. Article 10
promotes freedom of expression but to when it comes to safeguard the rights of other
person, the freedom of expression is restricted. The issue between the two rights is
which of the two, supersedes the other. The House of Lords based its decision primarily
on the conflicting rights that arises from both these articles and the significance of
striking a proper balance between both the articles as neither the articles have
superiority over the other.
In the given case, the claimant’s right to privacy and the defendant’s right of the
press to freedom of expression was subject to conflict. The High Court ruled that the
Campbell’s right to privacy superseded the right of the press to freedom of expression
and majority of the Lords agreed with the decision. The decision was based on the
argument that although a free press and freedom of expression is an essential concern
in the United Kingdom and in a democratic society, but it does not imply that the press
shall be free to broadcast details of personal lives of celebrities that they have
attempted to keep it confidential3. However, under circumstances where there is a
3 Diggelmann, Oliver, and Maria Nicole Cleis. "How the right to privacy became a Human Right." Human
Rights Law Review 14.3 (2014): 441-458.

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prevailing public interest associated with the publication of the private information about
the celebrity, the press is statutorily obligated to publicize such information.
Further, in this case, the House of Lords have accepted the fact that protection could
be extended towards the right to privacy of an individual by applying the prevailing law
of confidence. As discussed above, one of the primary concerns related to the
Campbell’s case is whether there was a reasonable expectation of privacy and in case it
is established, the court is required to determine whether striking a balance between
Article 8 and Article 10 would be favorable for safeguarding this privacy or
safeguarding the publication of the information. In Joanne Murray Rowling’s case, the
Harry Potter author brought a legal claim against the Big Pictures Ltd for taking
pictures of her son David while they were walking on the street. Rowling contended that
being a public figure she expects to be photographed but her son was not a public
figure and therefore had expectation of privacy that was different from her own4. The
court further taken into consideration of the fact that David was a young child hence, it
amounted to breach of confidence and misuse of private information. Since, he was
young child, it was more important that Article 8 comes into play. However, it does not
imply that there would be a press-free zone for children; hence, it is important to
balance between Article 8 and Article 10 of the Convention. Under such
circumstances, there would be exceptions where private information shall be disclosed
by the press exercising their press right to public information, if the interest of the public
supersedes the private information that is expected to be kept confidential5. The court
decided in favor of Rowling stating that by balancing Article 8 and Article 10, any
publication of photos that shows an individual performing day-to-day activities shall
amount to infringement of privacy. This decision expanded the law of confidence as it is
associated with the right to privacy and this decision made it easier for any person
whose privacy rights have been infringed to bring a legal action on such ground.
4 Diggelmann, Oliver, and Maria Nicole Cleis. "How the right to privacy became a Human Right." Human
Rights Law Review 14.3 (2014): 441-458.
5 Taylor, Linnet, Luciano Floridi, and Bart van der Sloot. "Introduction: A New Perspective on
Privacy." Group Privacy. Springer International Publishing, 2017. 1-12.

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Following on from the Campbell’s case, when the freedom of press is in conflict with
the other interests that is safeguarded by law, it is for the court to determine whether the
disclosure of the information is in the interest of the public. However, the ‘Mirror’ has
taken into consideration the following grounds that establish there is public interest
associated with the publication of the information about Campbell. Firstly, the claimant
is a public figure having a long relationship with media. Secondly, she had made
publication about various aspects of her personal life including use of drugs against
which she made a false claim. These were the grounds based on which the ‘Mirror’
claimed that the publication of such information and the photographs was in the interest
of the public and by doing so, the ‘Mirror’ exercised its rights which is safeguarded by
the ECHR under article 10 of the Convention6. In the absence of any contrary public
interest recognized by law, the press is at liberty to publicize anything it wishes to no
matter to what extent such publication is offensive, spiteful or trivial in nature. However,
in case there is a conflict between the interests of the press and the other rights
protected by law, one must establish sufficient public interest to justify the restriction of
the conflicting rights.
Now, based on the grounds contended by the ‘Mirror’ that since Campbell had been
public figure and have publicized various aspects of her life including her drug
consumption, is insufficient to establish public interest in the publication of the document
and photographs, hence, it did not form a valid justification for the publication. The
‘Mirror’ published the fact about the drug dependency and the fact that she was
undergoing treatment because she already had publicized about her drug consumption
but later denied that she was not into drugs. The court accepted that this had created
adequate public interest in the correction of her previous statements. The court while
determining whether the Mirror should have restricted to itself about the circumstantial
details and not print the photographs, the court applied the test of necessity or
proportionality according to which it was possible for the ‘Mirror’ to satisfy the interest of
the public by providing a less-detailed story without any photographs7.
6 Smith, Rhona KM. Textbook on international human rights. Oxford University Press, 2016.
7 Taylor, Linnet, Luciano Floridi, and Bart van der Sloot. "Introduction: A New Perspective on
Privacy." Group Privacy. Springer International Publishing, 2017. 1-12.

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In the present case, the pictures of the claimant were taken without her consent but
do not amount to a violation of privacy. Although, photographs may be taken without
any consent but it does not imply that anyone who obtains photographs can publish the
same as was held in Peck v United Kingdom [2003] 36 EHRR 719. Any publication by
way of pictures showing somebody in an embarrassment situation, even if it is taken in
a public place, shall amount to infringement of right to privacy.
In this case, Ms. Campbell stated that the information regarding whether a person is
receiving any medical treatment for addiction, the details with respect to the treatment of
the person must be kept as confidential8. The necessity to maintain confidentiality of the
information becomes stronger when disclosure of such information would result in
disruption in treatment of the concerned person. The name ‘narcotics anonymous’
itself indicates the significance of privacy in the context of the individuals who are
subject to such treatment.
However, the respondent ‘MGN Ltd’ newspaper was of the opinion that the
information published about Miss Campbell did not result in breach of duty of
confidence that ‘Mirror’ owed to Miss Campbell. They further contended that a proper
balance was maintained with respect to the right to private life of the claimant under
Article 8 of the ECHR and the right to freedom of expression that is stipulated under
section 10 (1) of the Convention. With respect to the confidentiality of the information,
the trial judge held that the facts that were published included that the claimant was a
drug addict and was receiving treatment by NA and it included details related to the
time, frequency of the treatment and the nature of the treatment process.
Further, the Court of Appeal held that any person in the position of the claimant
would have been distressed on seeing the photographs showing the person leaving
from the place where she has been receiving therapy for drug addiction. The person
would have perceived the publication along with the article, which reveals what she had
been doing while she was clicked and other details about her therapy as an interference
with the right to privacy. It is a fact that the press has freedom of expression to publish
8 Dawes, Simon. "Press freedom, privacy and the public sphere." Journalism Studies 15.1 (2014): 17-32.

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anything but such publication must not infringe the right to privacy of an individual. In
the context of this case, the additional element in the publication sufficient to outweigh
the right to freedom of expression based on which the defendant claims that there has
not been any violation of the right to privacy of the claimant9.
Despite given the significance of the right to freedom of expression that is required
by the press to play its role effectively, it can be observed that there has been an
infringement of the right to privacy of Miss Campbell based on the publication of the
details of the treatment process being undertaken by the claimant. Thus, in regards to
the question in issue to strike a balance between the article 8 and Article 10 of the
Convention, it can be inferred from the decision given by the court that it applied the
touchstone test to determine whether the Campbell had reasonably expected privacy
with respect to the disclosed facts. Further, the publication of the photographs along
with the article providing details of Campbell’s schedule about her therapy treatment
meetings with NA, establishes the fact that there has been a breach of the right and the
claimant is entitled to compensation. Thus, the court had allowed the appeal and
restored the orders passed by the Trial judge.
9Dawes, Simon. "Press freedom, privacy and the public sphere." Journalism Studies 15.1 (2014): 17-32.

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Reference list
Coco v Clark (Engineers) LTD [1969] RPC 41
Dawes, Simon. "Press freedom, privacy and the public sphere." Journalism
Studies 15.1 (2014): 17-32.
Diggelmann, Oliver, and Maria Nicole Cleis. "How the right to privacy became a Human
Right." Human Rights Law Review 14.3 (2014): 441-458.
Lennon v News Group Ltd and Twist
McHarg, Aileen. "Human rights: would our rights be better protected in or out of
Europe?." (2016): 64-68.
Peck v United Kingdom [2003] 36 EHRR 719
Schabas, William A. The European convention on human rights: a commentary. Oxford
University Press, 2015.
Smith, Rhona KM. Textbook on international human rights. Oxford University Press,
2016.
Taylor, Linnet, Luciano Floridi, and Bart van der Sloot. "Introduction: A New Perspective
on Privacy." Group Privacy. Springer International Publishing, 2017. 1-12.