Naomi wins and loses: What price for privacy?

In 2004, following the House of Lords ruling that photographs of supermodel Naomi Campbell leaving a drug rehabilitation unit breached her privacy, Mirror Group Newspapers were obliged to pay £500k in costs and success fees. On Tuesday, the European Court of Human Rights held on appeal six votes to one that there had been no violation of the applicant’s Article 10 rights.

The applicants largely relying on the HOL dissenting comments of Lord Nicholls and Lord Hoffman, argued that their freedom of expression under Article 10 was weightier than Article 8’s respect for Campbell’s private life. Strasbourg followed a line of reasoning that is well established in Human Rights law when determining whether an interference of a right is justified. It was concluded that the interference with the freedom of expression was prescribed by law for a legitimate aim and was necessary in a democratic society.

The applicant noted that the House of Lords had failed to put sufficient weight into the editor’s assessment. While the European Court did refer to the press and its preeminent role as a “public watch dog” it did take note of the private nature of drug addiction and its possible detriment to Campbell resulting from its release into the public domain. Strasbourg concluded that the press do have a right to release information for public interest, even if it conflicts with Article 8. The facts were distinguished in this case that Naomi Campbell’s private life was only an interest to society to the extent that she was a famous figure of interest to the public. The judgement today remarked that the House of Lords were in fact unanimous on these main principles but differed in narrower issues.

Interestingly, the partly dissenting opinion of Judge David Thor Bjorgvinsson disagreed with the decision that Article 8 took precedence over freedom of expression in this instance. The judge found the distinction between justifying the use of the original story and the supplementary material (photographs etc) unconvincing. He stated that although Campbell may have found the story “annoying” the supplementary material did not reveal any fundamental information, it merely “added colour to the conviction”.

MGN won their second ground at Strasbourg, as it was decided unanimously that 100% success fees in Conditional Fee Agreements for privacy and defamation cases violate freedom of expression prescribed by Article 10. It was found that the cost regime did follow a legitimate aim, primarily offering claimant’s with little money but deserving causes access to justice. However, referring mainly to the Jackson Review, the court highlighted that the cost system was not necessary in a democratic society. Qualifying requirements for claimants to enter into a conditional fee agreement (CFA) were absent, secondly there was no incentive for the claimant to control legal costs incurred as they would not be obliged to pay if the case was lost, thirdly this system had a “blackmail,” as Lord Hoffman put it, effect on parties who were often driven to settle cases quickly.

This case will have an impact on civil actions not covered by legal aid. The decision is binding on government but only persuasive in the domestic courts. The Jackson Review is largely supported by the government and implementation of its suggestions are a likely outcome for the future. However, the extent of the review’s efficiency is still uncertain in light of the recent proposals for legal aid cuts.