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Latest Appeal Court ruling puts Campbell in the soup

The recent Court of Appeal decision in the Naomi Campbell case reaffirms the principle that the courts won’t automatically recognise the right to privacy under English law and that celebrities have a smaller zone of privacy than the rest of us, writes brand communication and legal guru Ardi Kolah.

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The concept of privacy is relatively new as there is no law directly protecting the privacy of the rich and famous as there is in the United States.

So the English courts are still feeling their way. The action to protect privacy has to be brought under other heads that could have the cumulative effect of protecting privacy. These are the Data Protection Act 1998 and the common law action for defamation.

At the original court hearing, supermodel Naomi Campbell won her action against the Mirror over its report that she was attending meetings with Narcotics Anonymous to beat her addiction to drugs, an addiction which she had previously publicly denied in the media.

The core issue before the court was whether the public interest argument in favour of publication outweighed any public interest in the protection of Naomi Campbell’s rights of confidentiality.

The Mirror contended that she hadn’t only placed her own private life in the public domain; she’d falsely denied abusing drugs and had misled the public.

Mr Justice Morland said: "The essential question is whether even if a public figure such as Naomi Campbell courts and expects media exposure, she’s left with a residual area of privacy which the court should protect if its revelation would amount to a breach of confidentiality."

Now that sounded deceptively like there was already a well established law of privacy.

The judge identified three elements which Naomi Campbell needed to establish.

1. Did the publication of her visits to the narcotics rehab’ centre have "the necessary quality of confidence" about it – the doctor and patient variety or even client / lawyer type.

2. Was the information imparted in circumstances importing an obligation of confidence? Whoever tipped off the Mirror bore an obligation of confidence concerning the information that had come into their possession.

3. Was the publication to Naomi Campbell's detriment?

Campbell’s lawyers were able to satisfy all three tests to succeed in getting judgment at the original trial.

But this turned out to be a pyrrhic victory because the judge acknowledged that the public had indeed a need to know that Naomi Campbell had been misleading them by denying drug addiction.

And that’s where it should’ve stopped.

However, the judge ruled that The Mirror wasn’t entitled to publish such details of her attendance at Narcotics Anonymous.

He therefore awarded her a miserable £2,500 in compensation, adding that the Mirror piece had "trashed her as a person in a highly offensive and hurtful manner. That trashing entitles her to aggravated damages." And he awarded Campbell £1,000.

So although she won the battle, she lost the war. This gave the Mirror’s legal team the green light to apply to the Court of Appeal to overturn the judgment.

Court of Appeal judgment

The last Court of Appeal judgment in the field of privacy was the Gary Flitcroft case (A-v-B). That judgment, although wide-ranging, gave little assistance in establishing to what extent English courts would step-in when the private life of an individual was encroached upon by the media.

However, the Court of Appeal in the Campbell case (October 2002) has given us more of a steer.

On the point that the public had "an understandable and so a legitimate interest in being told information, even including trivial facts, about a public figure", the Court of Appeal added the caveat that this didn’t apply to those private facts which a fair-minded person would consider it offensive to disclose.

The Court of Appeal then made a distinction between those whose public prominence was assumed, and those whose prominence was the mere product of the interest generated because that person's life was successful, or distinctive in some other way.

The Court of Appeal said: "For our part, we would observe that the fact that an individual has achieved prominence on the public stage does not mean that (her) private life can be laid bare by the media.

"We do not see why it should necessarily be in the public interest that an individual, who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay."

Ms Campbell of course didn’t fall into this category, as the evidence clearly showed she had set out to deceive the public through the media.

The Court of Appeal had to determine whether the information was confidential, and it adopted the Australian test of whether "disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities" (omitting the need for "highly").

It concluded that the additional element of the Narcotics Anonymous treatment (on top of other elements of the story which Ms Campbell conceded were legitimately published) didn’t fall into the legal category of confidential information.

The Court of Appeal also stressed the entitlement in the public interest for the media to publish peripheral details when disseminating information which the public had the right to know.

After negotiating the "thicket" of the Data Protection Act 1998, the Court of Appeal concluded that the S.32 of the Data Protection Act 1998 (which provides for an exemption for the media) did apply to publication as well as "processing" data, and that since The Mirror had succeeded in establishing that publication was in the public interest, it could rely on this exemption under the Data Protection Act 1998.

Permission to appeal to the House of Lords was refused.

What does this recent judgment mean for the rich and famous?

It’s clear from the Court of Appeal judgment that where a public figure chooses to make untrue statements about their private life, the media will normally be entitled to put the record straight.

In doing this, the media will be allowed to add peripheral details to a story in order to give it credibility.

Consequently the old principle that the law of confidence can’t be used to hide impropriety has been re-established.

Insofar as English law seeks to protect an individual’s privacy, this is subject to a reduced protection for those who have themselves already exposed their private life to public view.

It therefore follows that the fact that an individual has achieved public prominence by other means doesn’t mean that their private life can be laid bare by the media.

However, the Court of Appeal has upheld the right of the media to publish confidential material where it proves that an individual has been misleading the public.

Campbell gambled on confidentiality and privacy being her saviour. She lost. Her court action is likely to have cost her the best part of £700,000 in legal fees.

Ardi Kolah is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00).

Read the review of the book on Brand Republic and order your copy online at http://www.bh.com/bookscat/links/details.asp?isbn=0750655003

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