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Campbell privacy ruling no breach of free speech, European judges rule

18 January 2011

Model Naomi Campbell's breach of privacy court win against Mirror Group Newspapers did not represent undue interference with the press's right to free speech, but the high costs recoverable from the defendants did, the European Court of Human Rights ruled today.

Ms Campbell took action after the Mirror newspaper published an article about her drug addiction, with a photograph of her leaving a Narcotics Anonymous meeting. She had previously denied having a drug problem. The High Court found her favour; the Court of Appeal reversed the decision; but the House of Lords, by a 3-2 majority, held that the clandestine taking of the photograph and its publication in conjunction with the article constituted a "gross interference with her right to respect for her private life", which was not outweighed by the paper's right to freedom of expression.

The court awarded the relatively modest sum of £3,500 in damages. However Ms Campbell claimed costs totalling over £1m, including a success fee in the House of Lords of £280,000 because her case was conducted under a conditional fee agreement (CFA). The costs claims for the lower courts were settled but the House of Lords again ruled in Ms Campbell's favour that the CFA rules were not incompatible with the Convention.

Mirror Group argued that Ms Campbell had not complained about the publication of the fact of her addiction, since she had previously put the issue in the public domain with her denial, and the House of Lords failed to accord sufficient weight to the editor's assessment made in good faith as to how much detail to publish in order to ensure the credibility of the story. But the court, by a 6-1 majority, considered that the judges had carefully considered the application of the Convention, and that, applying the "margin of appreciation" principle, it should not substitute its own view for that of the majority.

Narrower interpretation

On the scope of the respective Convention rights it commented: "The court considers that the publication of the photographs and articles, the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure's private life, cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation... Moreover, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution".

It concluded: "The relevancy and sufficiency of the reasons of the majority as regards the limits on the latitude given to the editor's decision to publish the additional material is such that the court does not find any reason, let alone a strong reason, to substitute its view for that of the final decision of the House of Lords or to prefer the decision of the minority over that of the majority of the House of Lords, as the applicant urged the court to do."

On costs, however, the court was unanimous that "the depth and nature of the flaws in the [CFA] system, highlighted in convincing detail by the public consultation process [carried out since 2003 and leading up to the Jackson report in 2010], and accepted in important respects by the Ministry of Justice, are such that the court can conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the state in respect of general measures pursuing social and economic interests".

Click here to access the court's judgment.

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