Thursday, October 28, 2010

It ain't over till it's over: Naomi Campbell

This article appears in the New Law Journal here.

Part of the role of a supermodel, one imagines, is the ability to generate headlines, and indeed as the cliché goes there is no such thing as bad publicity.

Naomi Campbell, however, one continues to imagine, might disagree on that last point, on the evidence of the past few years anyway. This year she has found herself in the law courts in the Hague, giving evidence in the trial of the alleged mass murderer Charles Taylor. She has, of course, already found her place in English legal history, through her famous privacy action against the Daily Mirror.

The Mirror was headed at the time by a young editor by the name of Piers Morgan, fully cognisant of the English tradition of press freedom and freedom of speech, and not shy about asserting it. Nor, one speculates, would Mr Morgan have been reluctant to weigh the increased revenue from the anticipated extra circulation against the likely cost of litigation.

It was Campbell’s action, more than any other, which established the existence of an actionable right to privacy (expressed in the House of Lords as a right of action in respect of “misuse of private information” —information in respect of which a person has a “reasonable expectation of privacy”). It remains the leading authority on the cause of action and the principle that the right to a private life under Art 8 of the European Convention on Human Rights and the right to freedom of expression under Art 10 are of equal weight, needing to be balanced according to the facts of each case.

Campbell the pioneer

Among the beneficiaries of her pioneering cause of action has been a farrago of footballers, entertainers and other “celebrities”. Thus far the most successful in terms of damages awarded has been Max Mosley, famous for his role in international motor racing and indeed for his parentage, both of which added a fair degree of spice to his activities which were the subject of a tabloid sting.

The balancing of the right to privacy and the right to freedom of expression forms one of the key debates in political, moral and legal philosophy. Part of that debate in the English context is the more established cause of action of libel, not without its share of recent controversy. The presence of Lord Neuberger as Master of the Rolls has already signalled a move towards freedom of expression and less in the way of privacy and libel, as shown for example in the withering condemnation by the Court of Appeal of Eady J’s judgment in British Chiropractic Association v Singh [2010] All ER (D) 08 (Apr). Eady J has also recently stepped down as the head libel judge, as previously reported in these pages.

Max Mosley: a case in point

Often one gets the impression that the excessively complex libel and privacy laws together with the usually salacious facts result in the court (and indeed observers of the court) not seeing the wood for the trees. Max Mosley is a case in point. What public interest was there in his antics with prostitutes? No doubt the antics did interest a segment of the public, but that’s not the same thing. The point is that, although it was outside his home and outwith his family, it was nonetheless a private sexual encounter. No-one else would agree to cameras in their bedroom without their consent and neither Mosley’s occupation nor the accident of his birth should make any difference. Campbell’s argument was on similar lines: she was receiving treatment akin to medical treatment, and ordinarily both the fact of one’s medical treatment and the content of that treatment itself would be considered private. Celebrities, however, always face a problem if the information is already in the public domain: no court is going to expend resources preventing publication of something already well known.

There were other important rulings in the Campbell litigation. The Court of Appeal considered also s 32 of the Data Protection Act 1998. It was held by the House of Lords in a subsequent hearing that Campbell’s success fee should be enforced notwithstanding the severity of the costs for the newspaper (see Heather Rogers QC “From Catwalk to Courtroom: Public Figure, Private Life” in Cases that Changed Our Lives, LexisNexis 2010). As to the parties involved, it would be fair to say that things have moved on. Photographed together on the red carpet for a charity event in February 2010, she and Morgan at least have put on the pretence of reconciliation.

It’s not over yet

And yet there remains a bizarre coda to the saga. It is nearly 10 years since the offending article was published, and the proceedings began. We have had full consideration by the domestic courts of the issues arising pursuant to Arts 8 and 10 of the Convention. Strikingly, however, the legal battle isn’t yet over. The Mirror’s appeal to the European Court of Human Rights remains outstanding. Judgment might appear before the end of this year. Whenever it does, one hopes therefore that the Strasbourg court might also find the time to say something about the right to a fair trial within a reasonable time under Art 6(1).

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