COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Hon Mr Justice Morland
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE KEENE
| NAOMI CAMPBELL ||Respondent|
|- and -|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Desmond Browne QC, Mr Richard Spearman, QC, and Mr Mark Warby, QC (instructed by Davenport Lyons for the Appellant)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Phillips MR:
This is the judgment of the Court.
Naomi Campbell v Mirror Group Newspapers
“The Articles Complained of
Thursday 1st February 2001
On the front page between two colour photographs of Miss Naomi Campbell, the one dressed ordinarily in a baseball cap and windcheater with the caption below “Therapy: Naomi outside Meeting” and the other glamorously and only partially covered with what appeared to be strings of beads, was the headline “Naomi: I am a drug addict”. The articles written by Polly Graham, who did not give evidence, were marked “exclusive” and read:-
“SUPERMODEL Naomi Campbell is attending Narcotic 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 £14 million 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 has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well”.
Her spokeswoman at Elite Models declined to comment”.
On pages 12 and 13 the article giving the full story appears with photographs under the headline “Naomi’s finally trying to beat the demons that have been haunting her”. The central photograph shows Miss Naomi Campbell outside the venue of a Narcotics Anonymous meeting. The caption below states “Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week”. The picture was taken by Frank Doran, a freelance photographer who was specifically engaged for the job by the Mirror. The faces of at least two people are pixillated.
The article included the following passages:-
“In our picture the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug.
This is one of the world’s most beautiful woman facing up to her drink and drugs addiction – and clearly winning.
The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle.
Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling.”
“To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.
The organisation encourages addicts to stay away not just from drugs but also from alcohol and even cigarettes as a part of a 12 step plan to recovery.
They take it one day at a time, starting with the acceptance that there is a problem.”
Her courageous decision to deal with her problem shows that the girl they call Babywoman is finally growing up.
“Something had to give, and thank God it was the drugs and partying,” says Naomi’s friend, she’s still fragile, but she’s getting healthy.”
“Naomi has been scared by what’s happened to people around her,” adds her friend.
“Flavio has coaxed her into making the right decision. It could have all ended so differently.”
“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.”
The Article of Monday 5th February 2001
“Help. Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs”.
The article was headlined:-
“After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy”
In the article are these words:-
“The Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous”
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.”
On page 10 of the same edition there are further columns entitled “A wait off our minds” in which it is stated:
“For the past 3 months she has been attending Narcotics Anonymous meetings to help her fight her addiction to drink and drugs”.”
Sources of information
The Judge’s findings
“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.”
Morland J. held that information relating to Miss Campbell’s therapy for drug addiction giving details that it was by regular attendance at Narcotics Anonymous meetings satisfied this test.
“usually the answer to the question whether there exists a private interest worthy of protection will be obvious.”
The Judge held that it was obvious that there existed a private interest worthy of protection.
“In my judgment the information giving details of her regular attendance at Narcotics Anonymous meetings for therapy must have been imparted in circumstances importing an obligation of confidence. The undisclosed source whether a fellow sufferer of drug addiction attending Narcotics Anonymous meetings or a member of Miss Naomi Campbell’s staff or entourage owed her an obligation of confidence in relation to the information; whether or not that information was supplemented by a Mirror reporter attending a Narcotics Anonymous meeting or by covert photography. The information clearly bore the badge of confidentiality and when received by the defendants they, Mr Morgan and the Mirror journalists were clothed in conscience with the duty of confidentiality.”
“In my judgment clearly the publication of information about details of her therapy in regularly attending meetings of Narcotics Anonymous was to Miss Naomi Campbell’s detriment. It was, viewed objectively, likely to effect adversely her attendance and participation in therapy meetings.
Although in my judgment the publication of the facts that she was a drug addict and had previously lied in saying that she never had a drug problem, caused her considerable distress, I am satisfied on the evidence that apart from that the publication of the details about her therapy sessions with Narcotics anonymous caused her significant distress.”
“While I entirely accept Mr Browne’s submission that Section 12(4) of the Human Rights Act 1998 applies to final relief, in my judgment it cannot whittle away to any extent rights to respect for private life under Article 8 of the convention which is a qualification to the freedom of expression under article 10(2).
I reject as absurd Mr Browne’s submission that because there are some errors of detail in the Mirror’s revelation that Miss Campbell was attending therapy sessions at Narcotics Anonymous, for example as to the length of time that she had been attending such sessions, the information lost the mark of confidentiality.”
“Although many aspects of the private lives of celebrities and public figures will inevitably enter the public domain, in my judgment it does not follow that even with self-publicists every aspect and detail of their private lives are legitimate quarry for the journalist. They are entitled to some space of privacy.
In my judgment the media to conform with article 8 should respect information about aspects or details of the private lives of celebrities and public figures which they legitimately choose to keep private, certainly “sensitive personal data”; unless there is an overriding public interest duty to publish consistent with article 10(2).
Clearly in my judgment the public had a need to know that Miss Naomi Campbell had been misleading the public by her denials of drug addiction and balanced and positive journalism demanded that the public be told that Miss Naomi Campbell was receiving therapy for her drug addiction.
Clearly the Mirror was fully entitled to put the record straight and publish that her denials of drug addiction were deliberately misleading. She might have been thought of and indeed she herself seems to be a self-appointed role model to young black women.
However consistent with Article 8 in my judgment the court should protect from publication and give remedies for the wrongful publication in breach of confidence of details, which have the mark and badge of confidentiality, of the private life which a celebrity or public figure has chosen not to put in the public domain unless despite that breach of confidentiality and the private nature of the information publication is justifiable. Article 10 is not an unqualified right as article 10(2) requires respect for the right of privacy has to be shown including by the media. Striking the balance between article 8 and 10 and having full regard to section 12(4) of the 1998 Act, clearly in my judgment Miss Naomi Campbell is entitled to the remedy of damages and/or for compensation.”
“a cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”
By his concession Mr Caldecott limited the scope of the legal argument that he advanced in relation to the facts. The extent to which he did so became clearer to us in the course of argument.
“The claimant does not claim that the disclosure by the defendant that she had a drug problem was a breach of confidentiality or an infringement of her of right of privacy. The claimant’s complaint is that by obtaining and publishing information relating to the receipt by the claimant of treatment of her drug problem at Narcotics Anonymous the defendant acted in breach of confidence.”
“…….this is a situation in which the information, were it not for the lies and the need to correct the public posturing, would plainly be confidential, so one has to look at more than the simple conspicuous nature of the confidentiality of the information at first sight. The editor needs to consider the question of whether there can be a public interest justification.…”
i) The information that Miss Campbell was a drug addict, that she was receiving treatment for her addiction from Narcotics Anonymous and the details of that treatment were matters that, despite her prominent position as a fashion model, she would have been entitled to keep confidential, had she not gone on record as asserting that she did not take drugs.
ii) The fact that Miss Campbell was a drug addict and was receiving treatment was communicated in confidence to members of her entourage and to others attending the treatment sessions at Narcotics Anonymous.
iii) An unknown source, either from her entourage or from those attending meetings at Narcotics Anonymous, communicated this information, in breach of confidence, to the appellants.
iv) The appellants were aware that the information disclosed was confidential. They rightly believed, however, that they were entitled to publish the information that Miss Campbell was a drug addict and was receiving treatment for her addiction in order to correct her public pronouncements that she did not take drugs.
“Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
i) The material in respect of which complaint is made is, in its context, too insignificant to attract the protection of the law of confidentiality; the more so as a substantial part of that material is not even accurate.
ii) The Appellants’ entitlement in the public interest to publish the fact that Miss Campbell was a drug addict and was receiving treatment carried with it the entitlement to publish such details as were provided in relation to that treatment.
iii) The Appellants acted honestly in publishing the material in question and that fact, of itself, provides them with a defence to a claim for breach of confidence.
Was the information confidential?
“In my judgment it matters not whether therapy is obtained by means of professional medical input or by alternative means such as group counselling or as here organised meetings for discussion between sufferers.”
“There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. 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.”
Entitlement in the public interest to publish the peripheral details
“In essence, that Article leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility. It protects journalists’ rights to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism.”
The Data Protection Act 1998
“‘data’ means information which-
(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,
(b) is recorded with the intention that it should be processed by means of such equipment,
(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or
‘personal data’ means data which relate to a living individual who can be identified-
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;
‘processing’, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-
(a) organisation, adaptation or alteration of the information or data,
(b) retrieval, consultation or use of the information or data,
(c) disclosure of the information or data by transmission, dissemination or otherwise making available, or
(d) alignment, combination, blocking, erasure or destruction of the information or data;
‘using’ or ‘disclosing’, in relation to personal data, includes using or disclosing the information contained in the data.
2. In this Act ‘sensitive personal data’ means personal data consisting of information as to-
(a) the racial or ethnic origin of the data subject,
(b) his political opinions,
(c) his religious beliefs or other beliefs of a similar nature,
(d) whether he is a member of a trade union (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992),
(e) his physical or mental health or condition,
(f) his sexual life,
(g) the commission or alleged commission by him of any offence, or
(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.”
The requirements of the Act
“..a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;”
It was accepted that the Appellants should be treated generically as the data controller. In argument the data controller tended to be equated with Mr Piers Morgan, the Editor of the Mirror, who had been personally responsible for the decisions taken in relation to the content of the articles complained of.
“1. (1) In determining for the purposes of the first principle whether personal data are processed fairly, regard is to be had to the method by which they are obtained, including in particular whether any person from whom they are obtained is deceived or misled as to the purpose or purposes for which they are to be processed.”
“CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA
1. The data subject has given his consent to the processing.
2. The processing is necessary –
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with a view to entering into a contract.
3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4. The processing is necessary in order to protect the vital interests of the data subject.
5. The processing is necessary –
(a) for the administration of justice,
(b) for the exercise of any functions conferred on any person by or under any enactment,
(c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or
(d) for the exercise of any other functions of a public nature exercised in the public interest by any person.
6. (1) the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.”
“3. –(1) the disclosure of personal data –
(a) is in the substantial public interest;
(b) is in connection with –
(i) the commission by any person of any unlawful act (whether alleged or established),
(ii) dishonesty, malpractice, or other seriously improper conduct by, or the unfitness or incompetence of, any person (whether alleged or established), or
(iii) mismanagement in the administration of, or failures in services provided by, any body or association (whether alleged or established);
(c) is for the special purposes as defined in section 3 of the Act; and
(d) is made with a view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest.”
“32. (1) Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if-
(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,
(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.
(2) Subsection (1) relates to the provisions of-
(a) the data protection principles except the seventh data protection principle.
(b) section 7,
(c) section 10,
(d) section 12, and
(e) section 14(1) to (3).
(3) In considering for the purposes of subsection (1)(b) whether the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practice which –
(a) is relevant to the publication in question, and
(b) is designated by the Secretary of State by order for the purposes of this subsection.
(4) Where at any time (“the relevant time”) in any proceedings against a data controller under section 7(9), 10(4), 12(8) or 14 or by virtue of section 13 the data controller claims, or it appears to the court, that any personal data to which the proceedings relate are being processed-
(a) only for the special purposes, and
(b) with a view to the publication by any person of any journalistic, literacy or artistic material which, at the time twenty-four hours immediately before the relevant time, had not previously been published by the data controller,
the court shall stay the proceedings until either of the conditions in subsection (5) is met.
(5) those conditions are-
(a) that a determination of the Commissioner under section 45 with respect to the data in question takes effect, or
(b) in a case where the proceedings were stayed on the making of a claim, that the claim is withdrawn.
(6) For the purposes of this Act “publish”, in relation to journalistic, literary or artistic material, means make available to the public or any section of the public.”
The decision of the court below
i) The processing was not ‘fair’. The photographs had not been fairly obtained. They had been taken covertly, giving no opportunity to Miss Campbell to refuse to be photographed.
ii) The processing was unlawful, in that it was in breach of confidence.
iii) None of the conditions in Schedule 2 were satisfied.
iv) The information published constituted sensitive personal data. None of the specific conditions in Schedule 3 were satisfied. Nor did the appellants satisfy the conditions in the Data Protection (Processing of Sensitive Personal Data) Order 2000.
“In my judgment Mr White’s submission is clearly right. The wording of the Section is in my judgment dealing only with pre-publication processing. It is aimed at limiting a disproportionate restraint on freedom of expression by publication such as the granting of injunctions to stop publication….
96. My interpretation accords with the views of Professor Ian Lloyd in his “Guide to the Data Protection Act 1998 at paragraph 6.9, of Mr Michael Tugendhat Q.C in “The Data Protection Act and the Media" (Yearbook of Copyright and Media Law 2000) p.115 at pages 130-131 and of Jay and Hamilton on “Data Protection Law and Practice" paragraphs 15-02(c) and 15.13.”
“What drives the new point taken by the Appellant is concern as to the scope of the section 32 exemption on the interpretation of that provision adopted by Morland J. That concern is understandable, and should (and doubtless will) lead to a careful re-examination of the correctness of Morland J’s ruling on the scope of the section 32 exemption.”
Notwithstanding this observation, Mr White strove vigorously in his oral submissions to uphold Morland J.’s conclusions.
(1) Does the Act apply to publication of newspapers and other hard copies containing information that has been subjected to data processing?
(2) Does the s.32 exemption only apply up to the moment of publication?
(3) Does the s.32 exemption apply to publication, insofar as this falls within the scope of the Act?
Does the Act apply to publication of hard copies?
“(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community;”
“(27) Whereas the protection of individuals must apply as much to automatic processing of data as to manual processing; whereas the scope of this protection must not in effect depend on the techniques used, otherwise this would create a serious risk of circumvention; whereas nonetheless, as regards manual processing, this Directive covers only filing systems, not unstructured files…”
“(b) ‘processing of personal data’ (‘processing’) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available alignment or combination, blocking, erasure or destruction.”
“1. This directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.”
While the definition of processing is reproduced in the Act, this provision has no counterpart.
“1. Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this directive is entitled to receive compensation from the controller for the damage suffered.
2. The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damage.”
If publication were not treated as part of a ‘processing operation’ this provision would be deprived of much of its force.
“(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes.
(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.”
Once again, if these provisions are to be effective, publication must be treated as part of the operations covered by the requirements of the Act.
Does the s.32 exemption apply only up to the moment of publication?
“The Government made clear in Parliament that the intention was that the media should normally do their job in conformity with the data protection principles. The exemption was introduced to take account of the special difficulties that had arisen in the recent past when, notoriously, certain public figures used their financial ability to stifle legitimate media inquiries into their malpractice. It was only to apply before publication. So this is not so much an exemption from the Act as a limited exemption from interim relief where there is a claim that there has been a contravention of the Act.”
“(37) Whereas the processing of personal data for purposes of journalism or for purposes of literary or artistic expression, in particular in the audio-visual field, should qualify for exemption from the requirements of certain provisions of this Directive in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed in particular in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whereas Member States should therefore lay down exemptions and derogation necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing, measures on the transfer of data to third countries and the power of the supervisory authority.”
“Processing of personal data and freedom of expression
Member States shall provide for exemptions or derogations from the provisions of this chapter, chapter IV and chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”
The parties were agreed that this Article imposes a positive obligation on Member States to provide exemptions in respect of data processing for the special purposes insofar as necessary to reconcile the right to privacy with the rules governing freedom of speech, but no further.
“Derogations and exemptions under article 9 must follow the principle of proportionality. Derogations and exceptions must be granted only in relation to the provisions likely to jeopardise freedom of expression and only in so far as necessary for the effective exercise of that right while maintaining a balance with the right to privacy of the data subject.
The directive requires a balance to be struck between two fundamental freedoms. In order to evaluate whether limitations of the rights and obligations flowing from the directive are proportionate to the aim of protecting freedom of expression particular attention should be paid to the specific guarantees enjoyed by the individuals in relation to the Media. Limits to the right of access and rectification prior to publication could be proportionate only in so far as individuals enjoy the right to reply or obtain rectification of false information after publication.
Individuals are in any case entitled to adequate forms of redress in case of violation of their rights.
In evaluating whether exemptions or derogations are proportionate, attention must be paid to the existing ethic and professional obligations of journalists as well as to the self regulatory forms of supervision provided by the profession.”
“Following the meetings to which I referred, we have included in the Bill an exemption which I believe meets the legitimate expectations and requirements of those engaged in journalism, artistic and literacy activity. The key provision is Clause 31. This ensures that provided that certain criteria are met, before publication – I stress “before” – there can be no challenge on data protection grounds to the processing of personal data for the special purposes. The criteria are broadly that the processing is done solely for the special purposes; and that it is done with a view to the publication of unpublished material. Thereafter, there is provision for exemption from the key provisions where the media can show that publication was intended; and that they reasonably believe both that publication would be in the public interest and that compliance with the bill would have been incompatible with the special purposes.”
The word ‘thereafter’ clearly means ‘after publication’.
“Given the high importance of freedom of inquiry and expression to our society, we must, on balance, favour publication, subject to reasonable restraint on the journalist’s actions. The present test has been designed with some care to do that. Of course journalists might get it wrong – that is in the nature of things. But they need to get it significantly wrong before the law should intervene.
We should maintain a proper emphasis on freedom of expression. Journalists already have to meet three tests, and can be challenged on any one of them. This particular one could put on the spike a range of stories that have merit in terms of the public interest, by raising the prospect of argument in court and of the application of penalties because of disagreement about the extent of those stories’ service to the public interest.”
Having regard to the provisions of sub-section (4) and (5), the ‘intervention of the law’ and the ‘argument in court’ contemplated can only have been after publication.
Does the s.32 exemption apply to publication?
Does the s.32 exemption apply on the facts of this case?
“Conscious of the terms of the PCC Code of Conduct, I considered carefully whether there was a public interest in the publication of the fact that Ms Campbell had a drug problem and had sought to deal with it. I thought there were two main reasons why publication was justified. (i) It appeared that Naomi Campbell had been committing a serious criminal offence by possessing and using a Class A drug over a period of years. (ii) As a role model to young people, she had held herself out in the media as someone who had managed to remain immune from the use of drugs in an industry where drug abuse was notoriously common. She had thus seriously misled the public. (iii) She had frequently made references to her private life in many interviews with the media.
There were two ways I thought The Mirror could approach the story. The first was to concentrate on Naomi Campbell’s deceit of the public and expose her as a drug addict and a hypocrite who had lied to the public. The second course, which I preferred, was to publish a sympathetic story, making the point that she had admitted to drug addiction, chosen to seek help for it, and had demonstrated real commitment to tackling her problem by regular attendance at Narcotic Anonymous over a prolonged period. It was this second approach which I decided we should adopt.”
“The use of long lens photography to take pictures of people in private places without their consent is unacceptable.”
The Judge had found that the covert photography of Miss Campbell emerging from the Narcotics Anonymous meeting was contrary to the letter and the spirit of the Code.