Naomi Campbell v MGN Ltd: towards recognition of right to privacy

Naomi Campbell, the British model who rose to fame in the 1990s as one of six models of her generation declared supermodels, is currently being celebrated at the Victoria & Albert Museum in a delightful temporary exhibition entitled ‟Naomi in fashion”. It is therefore the right time to delve into the most famous litigation case in which Ms Campbell was involved in (no, not that one where she allegedly tossed a mobile phone at her maid and was consequently sentenced to five days’ community service and ordered to attend an anger management course). What we want to get our teeth into is the Naomi Campbell v MGN Ltd case, a seven-year-old saga which contributed to the recognition of a human rights principle of privacy under English law.

1. The facts

On 1 February 2001, an article was published in the British redtop the ‟Mirror” which disclosed that Naomi Campbell was a drug addict receiving therapy with Narcotics Anonymous.

The article gave details of the meetings that she was attending. It was illustrated by photographs showing Ms Campbell leaving a Narcotics Anonymous meeting in the King’s Road, in Chelsea, London. Others with her, who were presumably leaving the same meeting, had their faces pixelated.

The article, marked ‟exclusive”, read: ‟Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs. The 30-year-old has been a regular at counselling sessions for three months, often attending twice a day. Dressed in jeans and baseball cap, she arrived at one of NA’s lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovering addicts. Despite her GBP14m fortune, Naomi is treated as just another addict trying to put her life back together. A source close to her said last night ‟she wants to clean up her life for good. She went into modelling when she was very young, and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. But Naomi realised she had a problem and has bravely vowed to do something about it. Everyone wishes her well.” Her spokeswoman at Elite Models declined to comment.”

Allegedly, the general tone of this article was sympathetic to Ms Campbell.

Also on 1 February 2001, Naomi Campbell’s solicitors wrote a complaint letter to the editor of the ‟Mirror” marked ‟private and confidential” enclosing a copy of the proceedings which had been issued that day, stating: ‟Publication of this article is a breach of confidentiality and an invasion of privacy. Please let us have your undertaking by return that: (1) You will not publish further … confidential and/or private information; (2) You will not commit any further unlawful invasions of our client’s privacy”. These complaints that this article invaded Naomi Campbell’s privacy were made on her behalf to Mirror Group Newspaper Ltd, the owner of the ‟Mirror” (‟MGN Ltd”).

In a further article published in the ‟Mirror” on 5 February 2001, notwithstanding Ms Campbell’s solicitor’s letter of 1 February 2001, these complaints were referred to, in terms which were no longer sympathetic. The second article’s headline was ‟Pathetic”, below which was a photograph with all faces pixelated except for Ms Campbell’s. Underneath was the caption: ‟Help. Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs.” The article was further headlined: ‟After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy.” In the same edition, there is an editorial under the heading ‟Voice of the ‘Mirror’” entitled ‟No hiding Naomi” which ends with these words: ‟If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it”. This second article made further reference to the fact that Ms Campbell was receiving treatment for drug abuse and contained a further photograph of her leaving the Narcotics Anonymous meeting in the previous week. This article stated: ‟For the past three months she has been attending Narcotics Anonymous meetings to help her fight her addiction to drink and drugs”.

Two further unsympathetic articles were published about Ms Campbell in the ‟Mirror” on 7 and 8 February 2001.

Ms Campbell consequently brought an action against MGN Ltd. She claimed damages for ‟breach of confidence and/or invasion of privacy” in respect of the first two publications and relied upon the latter two publications as entitling her to aggravated damages. She also claimed that MGN Ltd was in breach of duty under the Data protection act 1998 (the ‟Act”) and that she was entitled to compensation under section 13 of the Act.

2. The legal proceedings

2.1. 2002 Hight court judgment: one point for Naomi Campbell

In Campbell v MGN Ltd [2002] EWHC 499 (QB), after a trial lasting five days in February 2002, Justice Morland held that Ms Campbell had established an entitlement to damages for breach of confidentiality and to compensation under the Act.

Consequently, Justice Morland awarded GBP2,500 of damages and compensation to Naomi Campbell.

The reason for the small amount of the award was that, from the outset, Ms Campbell conceded that MGN Ltd was entitled to publish the fact that she was a drug addict and was receiving treatment for her addiction.

Her claim for damages and compensation related only to the additional information conveyed by the articles and the photographs published by MGN Ltd. She submitted that the relevance of the photographs published by the ‟Mirror” was that they conveyed to the public information that was not otherwise truly obtainable, namely what the event and its participants looked like (Douglas v Hello! [2001] QB 967, 1011). She also submitted that the fact that those with Ms Campbell had their faces pixelated demonstrated that ordinary people in Ms Campbell’s position would have a reasonable expectation of privacy. Furthermore, she submitted that the statements that she had been attending NA meetings for three months were inaccurate, since she had been attending such meetings for about two years, in the United Kingdom (‟UK”) and abroad. Moreover, the statement that Ms Campbell regularly went twice a day to group counselling was inaccurate. It greatly exaggerated the frequency of her attendance at such meetings.

Morland J held that the two later articles belittled Ms Campbell, in a highly offensive and hurtful manner, in relation to her claim, that these articles went beyond legitimate criticism of Ms Campbell and sounded in aggravated damages in so far as this caused increased injury to her feelings. He assessed the consequent increment to the damages in the sum of GBP1,000. MGN Ltd appealed this first-degree judgment, challenging the judge’s finding that they were in breach of duty to Ms Campbell and his award of aggravated damages.

2.2. 2002 Court of appeal decision: one point for MGN Ltd

After a hearing which lasted two and a half days, in Campbell v MGN Ltd [2002] EWCA Civ 1373 – [2003] QB 633, the appeal judges found that:

Naomi Campbell conceded that no complaint was made as to the publication of the bald fact that she was receiving treatment for her addiction. The reason for such concessions was her acceptance that, by misleadingly asserting to the media that she did not take drugs, she had rendered it legitimate for the media to put the record straight;

the fact that an individual has achieved prominence on the public stage does not mean that their private life can be laid bare by the media; also this is not in the public interest;

the Human rights act 1998 (‟HR act”) has had a significant impact on the UK law of confidentiality by transposing the human rights consecrated by the European Convention of Human Rights (the ‟Convention”) into English law. On the one hand, when considering what information is confidential, the courts must have regard to the article 8 right to respect for private and family life. On the other hand, they must have regard to the importance of freedom of expression, particularly where it is the media that seeks to exercise this freedom. The European Court of Human Rights (‟ECHR”) has repeatedly recognised that freedom of the media is a bastion of any democratic society, set out in article 10 of the Convention and section 12(4) of the HR act reflects the same appreciation;

UK courts are in the process of identifying, on a case-by-case basis, the principles by which the law of confidentiality must accommodate the article 8 and article 10 rights. One principle, which has been recognised by the parties in this case, is that, where a public figure chooses to make untrue pronouncements about their private life, the press will normally be entitled to put the record straight;

given that it was legitimate for MGN Ltd to publish the fact that Ms Campbell was a drug addict and that she was receiving treatment, it does not seem to the appeal judges that it was particularly significant to add the fact that the treatment consisted of attendance at meetings of Narcotics Anonymous;

the peripheral disclosure of Ms Campbell’s attendance at NA was, in its context, not of sufficient significance to shock the conscience and justify the intervention of the court;

the inaccuracies in the articles had an insignificant impact on the story as a whole because the details faded into insignificance compared to the central fact that Ms Campbell was receiving treatment for drug addiction;

the publication of information of which Ms Campbell complains was not, in its context, sufficiently significant to amount to a breach of duty of confidence owed to her;

the public interest entitles to publish the peripheral details, and the detail that was given, and indeed the photographs, were a legitimate, if not an essential, part of the journalistic package designed to demonstrate that Ms Campbell had been deceiving the public when she said that she did not take drugs;

the information published by MGN Ltd was justified in order to provide a factual account of Ms Campbell’s drug addiction that had the detail necessary to carry credibility. Provided that publication of particular confidential information is justifiable in the public interest, the journalist must be given reasonable latitude as to the manner in which that information is conveyed to the public or their article 10 right to freedom of expression will be unnecessarily inhibited;

the judgment given in Ms Campbell’s favour for breach of confidence had to be set aside;

pursuant to the Act, where the data controller is responsible for the publication of hard copies that reproduce data that has previously been processed by means of equipment operating automatically, the publication forms part of the processing and falls within the scope of the Act;

however, MGN Ltd were entitled to invoke the journalism exemption provisions of section 32 of the Act, in answer to Ms Campbell’s claim;

as the details of Ms Campbell’s attendance at NA were part of a journalistic package that it was reasonable to publish in the public interest, the appeal judges did not consider that it would have been reasonably practicable to comply with the provisions of the data protection principles while at the same time making the publications in question. It followed that MGN Ltd had made good their contention that the three conditions of exemption under section 32 were satisfied;

consequently, there was no infringement of the Act by MGN Ltd;

therefore, in relation to damages awarded, the appeal was dismissed;

with respect to the aggravated damages awarded on the base of the articles published by MGN Ltd on 7 and 8 February 2001, the appeal judges agreed with the first-degree judge that the terms of these articles justified the findings made by this judge and that it would have been open to him to award aggravated damages in respect of them, had his findings on liability been valid;

therefore, in relation to aggravated damages awarded, the appeal was allowed, and

Ms Campbell was to pay costs of GBP100,000 on account of costs within 28 days, and 80 percent of appeal costs.

Consequently, the decision of Justice Morland [2002] EWHC 499 (QB) was reversed by the court of appeal in October 2002.

Ms Campbell appealed.

2.3. 2004 House of Lords decision: a second point for Naomi Campbell

Following a hearing of two days, in Campbell v MGN Ltd [2004] UKHL 22 handed down on 6 May 2004, the five lords of appeal for judgment in the cause opined as follows:

With respect to breach of confidence and misuse of private information: while the values protected by article 8 of the Convention (respect for private and family life) must leave room for the right to freedom of expression protected by article 10 of the HR act, a proportionality test should be applied (i.e. the ‟highly offensive” test);

In the present case, the information disclosed about Ms Campbell, relating to health matters and medical treatment, may have been private in nature and therefore protectable under article 8 of the Convention;

Moreover, there is no public interest whatever in publishing to the world the fact that this citizen had a drug dependency;

The court of appeal erred in looking at whether the disclosure would have offended the ‟reasonable man of ordinary susceptibilities”, looking at the mind of the reader. This is wrong because it greatly reduces the level of protection that is afforded to the right of privacy. The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if they were placed in the same position as the claimant and faced with the same publicity;

The reasonable person of ordinary sensibilities would also regard publication of the covertly taken photographs, and the fact that they were linked with the text in this way, as adding greatly overall to the intrusion which the article as a whole made into Ms Campbell’s private life;

Any person in Ms Campbell’s position, assuming them to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she had been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs. They would have seen their publication, in conjunction with the article which revealed what they had been doing when they were photographed and other details about their engagement in the therapy, as a gross interference with her right to respect for her private life. This additional element in the publication is more than enough to outweigh the right to freedom of expression which MGN Ltd was asserting in this case;

There is therefore, via the publication of the article in the ‟Mirror‟, constitution of an infringement of Ms Campbell’s right to privacy that cannot be justified and she is therefore entitled to remedy;

By a majority ruling of three to two of the law lords, the judges therefore allowed this appeal and restored the order of the first-degree judge.

Consequently, the October 2002 decision of the court of appeal was reversed, the order of Justice Morland restored.

In a later judgment on costs [2004] 2 AC 457, the House of Lords ordered MGN Ltd to pay Ms Campbell’s costs in the court of appeal and in the House of Lords.

Consequently, pursuant to the order of the House of Lords, Ms Campbell’s solicitors served three bills of costs to MGN Ltd:

GBP377,070.07 for the trial;

GBP114,755.40 for the appeal to the court of appeal, and

GBP594,470.00 for the appeal to the House of Lords,

for a total of GBP1,086,295.47.

MGN Ltd complained to the House of Lords that their right to freedom of expression had been infringed, by making them liable to pay GBP1,086,295.47 as well as their own legal costs, particularly since the award for remedies was solely for GBP3,500.

By petition presented in the House of Lords on 21 February 2005, MGN Ltd sought a ruling that they should not be liable to pay any part of the success fee, provided for in the conditional fee agreement (‟CFA”) entered into between Ms Campbell and her retained solicitors and counsel at the stage of the proceedings in the House of Lords, on the ground that such a liability was so disproportionate as to infringe their right to freedom of expression under article 10 of the Convention.

Indeed, GBP594,470 of which related to the House of Lords appeal which the solicitors and counsel of Ms Campbell acted on a CFA, which provided that, if the appeal succeeded, solicitors and counsel should be entitled to base costs as well as success fees amounting to 95 percent and 100 percent of their base costs, respectively. Thus, the ‟profit” element (i.e. ‟base costs”) of the legal bill was GBP288,468, the success fee GBP279,981.35, whilst disbursements were GBP26,020.65. On 2 August 2005, Ms Campbell’s solicitors accepted MGN Ltd’s offers to pay GBP290,000 (High court costs) and GBP95,000 (Court of appeal costs), both amounts being exclusive of interest.

2.4. 2005 House of Lords decision: a third point for Naomi Campbell

In Campbell v MGN Ltd [2005] UKHL 61 handed down on 20 October 2005, the same five lords of appeal for judgment in the cause handed down the following judgment:

CFAs are enforceable provided that they state the percentage by which the amount of fees which would be payable if it were not a CFA is to be increased (the maximum success fee is 100 percent);

Under the Civil Procedure Rules (‟CPR”) and their accompanying Practice Directions, success fees are now (subject to assessment) normally recoverable from the losing party;

Section 9.1 of the Practice Direction accompanying part 44 of the CPR provides that under an order for payment of ‟costs”, the costs payable will include an ‟additional liability” incurred under a ‟funding arrangement”. A funding arrangement means a CFA or a policy taken out to insure against liability to pay the other side’s costs (‟after the event” insurance) and an ‟additional liability” is the success fee or the ‟after the event” premium;

The impact of the recoverability of success fees lies upon the principle that recoverable costs should have been proportionately and reasonably incurred. The overriding objective set out in CPR 1.1. includes ‟Dealing with the case in ways which are proportionate:

To the amount of money involved;
To the importance of the case;
To the complexity of the issues, and
To the financial position of each party”.

However the test of proportionality and reasonableness is applied only to basic costs, and not to the total sum for which the losing party may be liable after the addition of the success fee (as explicitly recognised in Section 11.5 Practice Direction: ‟In deciding whether the costs are reasonable and (on a standard basis assessment) proportionate, the court will consider the amount of any additional liability separately from the base costs”;

In the present case, the challenge is to the allowance of any success fee at all;

That challenge is based upon the special position of the media as defendants to actions for defamation and wrongful publication of personal information such as that brought by Ms Campbell against MGN Ltd. There is a human right to freedom of expression with which the imposition of an excessive cost burden may interfere. It is the effect which the threat of heavy liability may have upon the conduct of a newspaper in deciding whether to publish information which ought to be published by which carries a risk of legal proceedings against it.

MGN Ltd says that in the circumstances of this case, an award of costs increased by a success fee is disproportionate for two reasons. First, they say that it is more than (and up to twice as much) the amount which, under the ordinary assessment rules, a costs judge would consider reasonable and proportionate. Secondly, MGN Ltd says that it was not necessary to give Ms Campbell access to a court because she could have afforded to fund her own costs, as she did at the trial and in the court of appeal.

The judges found that these arguments were flawed because it is a matter for Parliament, and not the court, to structure the CFA regime so as to strike a balance between article 10 (freedom of expression) and article 6 (right to a fair trial) rights;

There is nothing in the relevant legislation or practice directions which suggests that a solicitor, before entering into a CFA, must enquire into their client’s means and satisfy themselves that they could not fund the litigation themselves;

The existing CFA regime with recoverable success fees was compatible with the Convention;

The success fee should be allowed;

Accordingly, the petition of MGN Ltd was unanimously dismissed.

From the date of rejection of this second appeal, MGN Ltd was liable to pay 8 percent interest on the costs payable.

On 28 November 2005, an order for the costs of the second appeal to the House of Lords was made against MGN Ltd. Ms Campbell therefore served an additional bill of costs of GBP255,535.60 to MGN Ltd. The bill included a success fee of 95 percent (GBP85,095.78) in respect of the solicitors’ base costs, her counsel having not entered into a CFA for this appeal.

MGN Ltd challenged the proportionality of the costs and success fees claimed in respect of both appeals to the House of Lords. An assessment hearing was scheduled for 8 March 2006 before the Judicial Taxing Officers in the House of Lords.

On 3 March 2006, MGN Ltd agreed with Ms Campbell’s solicitors to pay the sum of GBP350,000 in respect of the costs claimed in relation to the first appeal. MGN Ltd considered it was unlikely to do better before the Taxing Officers, it wished to avoid accruing interests (8 percent per day) and further litigation on costs would lead to further costs and success fees.

The hearing on 8 March 2006 (before two Judicial Taxing Officers) therefore concerned the costs of the second appeal only. By judgment dated 8 March 2006, the Judicial Taxing Officers found that, in these hard fought proceedings ultimately decided by a split decision of the House of Lords, there was ‟no doubt” that the success fees (95 percent and 100 percent) claimed in respect of the first appeal to the House of Lords were appropriate having regard to the first and second instance proceedings. Since the second appeal to the House of Lords was part and parcel on the first, the second appeal was covered by the CFA and thus the same success fees. A success fee of 95 percent for the second appeal to the House of Lords was therefore approved. Relying on Rules 44.4 and 44.5 of the CPR and paragraph 15.1 of the Costs Practice Directions, as well as the necessity test, the Taxing Officers reduced the hourly rates chargeable by Ms Campbell’s solicitors and counsel, thereby reducing the base costs and, consequently, the success fee payable by MGN Ltd.

On 5 May 2006, MGN Ltd appealed to the House of Lords arguing that the Taxing Officers judgment was incorrect in so far as those officers considered that the success fee for the second appeal could not be varied. On 28 June 2006, the House of Lords refused leave to appeal.

On 5 July 2007, MGN Ltd agreed to pay GBP150,000 (inclusive of interest and assessment procedure costs) in settlement of Ms Campbell’s costs of the second appeal.

MGN Ltd lodged a claim with the ECHR for breach of its right to freedom of expression under article 10 of the Convention.

2.5. 2011 ECHR judgment: a point for Naomi Campbell and a point for MGN Ltd

In the judgment MGN Ltd v the United Kingdom, handed down on 18 January 2011, the ECHR decided that:

The UK did not breach the right to freedom of expression guaranteed by article 10 of the Convention, of MGN Ltd, by finding a breach of confidence/misuse of private information against it;

The interference with the right to freedom of expression was prescribed by law (i.e. the common law tort of breach of confidentiality) for a legitimate aim (i.e. protecting the rights of others, namely Ms Campbell’s right to respect for her private life);

This interference was necessary in a democratic society, in light of the significant additional distress suffered by Ms Campbell because of the publication of the additional material (i.e. the photographs, details about her treatment with Narcotics Anonymous, the unsympathetic second to fourth articles published by the ‟Mirror”);

The finding by the House of Lords that MGN Ltd had acted in breach of confidence did not violate article 10 of the Convention;

However, the requirement to pay the success fees, as an unsuccessful defendant in breach of confidence proceedings, constituted an interference with MGN Ltd’s right to freedom of expression guaranteed by article 10 of the Convention;

This interference was prescribed by law within the meaning of article 10 of the Convention since the provisions relating to CFAs, the calculation of success fees by a percentage uplift and their recoverability from an unsuccessful defendant are regulated by the 1990 and 1999 Acts, the Conditional Fees Arrangement Orders 1995 and 2000 as well as the CPR and relevant Cost Practice Directions;

The CFA with recoverable success fees sought to achieve the legitimate aim of the widest public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others within the meaning of article 10.2 of the Convention;

Therefore, the interference had a legitimate aim;

However, the interference was not necessary in a democratic society;

The requirement that MGN Ltd pay success fees to Ms Campbell was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the UK government in such matters;

Accordingly, there has been a violation of article 10 of the Convention;

With respect to MGN Ltd’s claimed reimbursement of the success fees paid to Ms Campbell following both appeals to the House of Lords, the question of the application of article 41 of the Convention is not ready for decision and, accordingly, reserves the said question and invites the UK government and MGN Ltd to submit, within three months from the date on which the judgment becomes final, their written observations on the matter and, in particular, to notify the ECHR of any agreement that they may reach.

3. Naomi Campbell v MGN Ltd: strengthening the right to privacy in the UK, to the detriment of unbridled freedom of expression by the media

Naomi has had an impact on the fashion industry, and the modelling industry, as the temporary exhibition at the Victoria & Albert Museum attest, but she has also had an uber effect on UK law as it relates to the right to privacy and the CFA regime and success fee.

For the first time in the UK, privacy law has been applied in favour of the person whose privacy has been breached, by the House of Lords, thanks to the common law tort of breach of confidence and the article 8 rights to respect for private and family life under the Convention.

The cost consequences for MGN Ltd have been monstrous, as they were sentenced to pay Ms Campbell’s legal costs and fees, which were above GBP1,000,000.

And, this is where this legal saga gets even more seminal than we initially thought, because, thanks to the House of Lords judgment Campbell v MGN Ltd (costs) HL [2005] UKHL 61, as well as the ECHR judgment MGN Ltd v the UK, the CFA regime and success fees were found in violation of article 10 of the Convention. These two decisions pushed the UK to reform the current costs and CFA scheme, supporting those campaigning against any level of success fees and even CFAs in defamation and media publication cases.

While many press lobbies, such as the Open Society Justice Initiative, cry wolf and lament the fact that excessive legal costs threaten media freedom, it is an expensive – but necessary payback – lesson for the UK tabloids which, with undercurrents of racism and alleged righteousness, did not hesitate to vilify Naomi Campbell, reproaching her to have “lied to the public by denying that she was a drug user” (as if this was anyone’s business other than Naomi’s) and falsely branding themselves as “sympathetic” of her seeking treatment for said addiction, while not hesitating to disclose confidential health information about her treatment with Narcotics Anonymous in their rags’ pages. Tit for tat. Hurt them and their wallet and they will remember the lesson.