Privacy law update 2

A balancing of facts: reconciling the Flitcroft and Campbell judgments

Last month two privacy law cases hit the headlines. In A v B Plc and Another, the footballer, Garry Flitcroft, lost his legal battle at the Court of Appeal to prevent the Sunday People publishing details of his extra-marital affairs. A few weeks later, in Campbell v Mirror Group Newspapers, Mr Justice Morland decided that Naomi Campbell’s attendance at Narcotics Anonymous (NA) meetings was private and ordered the Mirror to pay damages for reporting details of these visits. The media reaction to each judgment was naturally different: the Flitcroft judgment was hailed as a historic victory for freedom of expression while the Campbell judgment was met with disappointment and disbelief. An examination of the cases and the law behind them reveals the approach to be taken by the courts in deciding privacy law cases, and shows the two judgments to be entirely consistent with one another.

The recent frenzy of attempts by public figures – such as Catherine Zeta-Jones and Michael Douglas, David Beckham, Garry Flitcroft and Naomi Campbell, to protect their privacy stems from the introduction of the Human Rights Act (HRA) in 2000 which contained a right to privacy which many hoped would introduce an new actionable right to privacy in England and Wales. The Court of Appeal in A v B Plc and Another shattered such hopes by categorically stating that there is no actionable right to privacy. However, public figures are entitled to a private life and this entitlement may be legally enforced through the common law duty of confidence.

In order to succeed in a claim for breach of confidence it is necessary to show that the information for which privacy is required has the necessary quality of secrecy or confidence, that the information is imparted in circumstances importing a duty of confidence, and that the unauthorised use of information has caused detriment to the person making the complaint. The Human Rights Act still has a role to play. The HRA works by requiring public authorities, including the courts, not to act in a way which is incompatible with the Act. Therefore, in making a decision, the courts must consider the Article 8 right to privacy. Moreover, the courts must also consider the competing right to freedom of expression at Article 10 of the HRA.

The Court of Appeal in A v B Plc and Another set out the approach to be taken in deciding privacy law cases: the courts should conduct a balancing of facts to determine whether the factual evidence weighs in favour of protecting privacy or in favour of allowing freedom of expression. As a starting point, the court will look at whether the information is protected by a duty of confidence. The more private the information – or the greater the duty of confidence, the more willing the courts will be to protect it. The courts will also look at whether the privacy seeker has courted public attention in the past. If he has, the court will consider that he has “less ground to object to the intrusion which followed. The courts will also consider whether the privacy seeker is a role model whose behaviour may be emulated. If the ‘private information’ shows the role model to have fallen short of the standard of behaviour expected, this will weigh in favour of publication.

In Garry Flitcroft’s case, the Court of Appeal found that the duty of confidence is undermined in non-marital relationships which one party wishes to disclose. The greater the stability of the relationship, the greater the legal obligation not to reveal secrets. Accordingly, the Court of Appeal decided that the degree of confidentiality held in the footballer’s brief affairs was modest. The Court of Appeal delighted the media in supporting a wide view of freedom of expression: where information is understandably of interest to the public, it is a legitimate interest which will support the case for freedom of expression. As a role model, Garry Flitcroft had fallen short of the higher standard of behaviour expected of him and, therefore, the public interest in his affairs was understandable and legitimate. Moreover, the Court of Appeal stated that once a court has decided that freedom of expression should prevail over the right to privacy, the court should not then prevent the publication of private details on the basis of taste. In other words, the courts may not act as censors of material, however salacious that material may be. On a balancing of facts, the Sunday People’s right to freedom of expression prevailed over Flitcroft’s right of privacy.

In contrast, in Naomi Campbell’s case against the Mirror newspaper, Mr Justice Morland decided in favour of privacy. Campbell’s case was strengthened by the fact that, unlike a brief affair, the NA meeting held the ingredients of a genuinely confidential matter – Campbell had taken steps to conceal her attendance at the meetings, the Mirror had known that the information came from someone with an obligation of confidence, and the Mirror had had to resort to taking photographs surreptitiously. The court found that in these circumstances, the Mirror also owed Campbell a duty of confidence and that there was no overriding public interest in publication. In balancing the facts, the judge considered that the confidential nature of the information fell into a “residual area of privacy to which Campbell was still entitled despite having selectively courted publicity in the past.

However, Mr Justice Morland indicated that had the issue been Campbell’s drug addition, the judgment would have been different. It was “extremely legitimate of the Mirror to report her drug addiction because, as a role model, Campbell had fallen below the standard expected. She had also misled the public by lying about her addiction. There was therefore a legitimate public interest in the publication of details of Campbell’s addiction which overrode the confidentiality, if any, in the fact of the drug addiction itself.

The battle between privacy and freedom of expression will continue to be played out by public figures and newspapers in the courts and judges will continue to perform the inexact science of balancing facts and weighing up rights. While the outcome of privacy cases will be difficult to predict, what recent cases have shown is that the balance is likely to tip more heavily in favour of privacy than in favour of freedom of expression when the details are truly confidential, and the privacy seeker - at least in relation to the confidential event, has not sought publicity, lacked integrity or fallen below the standard legitimately expected by the public.

For further information please contact Tim Hardy by telephone on +44(0)20 7367 2533 or by e-mail at [email protected].