gazetteIt is now over ten years since the landmark decision in Campbell v MGN Ltd ([2004] 2 AC 457) established the misuse of private information (“MOPI”) tort (any lingering doubt that it might not be a tort has been eradicated by the Court of Appeal decision in Vidal-Hall v Google Inc [2015] EWCA Civ 311). 

The great promise within the Campbell decision was that it would create not just a privacy right but a strong privacy right at that: that it would protect privacy despite there being a public interest in publishing that information. 

This exceptional level of protection would be realised by the proportionality exercise envisaged by stage two of the Campbell test by which courts would decide whether the privacy claim was stronger than the competing free speech claim (stage one being whether there is a reasonable expectation of privacy at stake).  This process is best illuminated by the four propositions that Lord Steyn identified in Re S ([2005] 1 AC 593 [17]):

“First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

Arguably, the MOPI jurisprudence, including the Campbell decision, provides judges with the analytical tools to comply with aspects of the first three propositions but not the fourth (or the comparative element of the second).  Moreover, it is also arguable that judges do not engage with the fourth proposition (or the comparative element of the second) and instead decide cases based upon their findings on the first three.  This omission, though, seems to be a necessary and principled approach to determining MOPI cases but that, as a consequence, it undermines the great promise within Campbell to regulate problematic press behaviour through law.

Rather than balancing the court appears to employ a binary approach to determining stage two of the Campbell test.  Thus, the court seems to subdivide claims into its elemental parts and then classifies each into one of three possibilities: first, that the information does not disclose any reasonable expectation of privacy (and therefore there is no case to answer); second, that there is a reasonable expectation but the privacy claim fails because there is a public interest in the information or third, alternatively, that the privacy claim succeeds because there is no public interest in the information.  In other words, if stage two of the Campbell test is reached then the claim is disposed of by deciding if there is a public interest in each of the component parts or not.

This can be seen in Campbell itself — that there was a public interest in the first two categories of information (relating to the fact of her drug addiction and treatment) but not in the final three (relating to details of her treatment at Narcotics Anonymous and photographs of her departing a meeting).  It was largely on this binary issue that the House of Lords was divided: Lords Nicholls and Lord Hoffmann felt that there was a public interest in allowing newspapers to publish details about her treatment whilst Lord Hoffmann also thought there was in the photograph (Lord Nicholls felt there was no reasonable expectation of privacy in it) whilst Lords Hope and Carswell and Baroness Hale disagreed.  It can also be seen in any other cases, including, more recently, the Court of Appeal decision in AAA v Associated Newspapers Ltd ([2013] EWCA Civ 554), which concerned an article about the identity of AAA’s father.  

The claim, at first instance, had been sub-divided into two categories: photographs of AAA and disclosure of his father’s identity.  The Court of Appeal approved the decision-making at first instance: that there was no public interest in the publication of the photograph of AAA, therefore that portion of the claim succeeded, but there was a public interest in knowing his father’s identity given he was a prominent public official and therefore that part failed.

Yet neither case demonstrates the proportionality exercise at work.  For example, in Campbell, why was there a public interest in the public knowing that Naomi Campbell took drugs and why did this outweigh the harm caused to her privacy interests?  Admittedly, counsel for Ms Campbell conceded this point early on in proceedings but what is interesting is the general consensus amongst their Lordships that counsel was right to do so.  Baroness Hale puts this most strongly where she says that ‘the possession and use of illegal drugs is a criminal offence and a matter of serious public concern.  The press must be free to expose the truth and put the record straight’ ([151]).

It is understandable, perhaps, that a judge would not want to condone drug use but the criminal law treats use differently to possession and supply, and possession is usually treated as less serious than supply.  Therefore to suggest that any drug use is a matter of serious public concern seems to grossly exaggerate the issue.  Also, Baroness Hale’s analysis sits in sharp contrast to the approach that Mr Justice Eady would later take in Mosley where he was less convinced that the commission of any crime is always a matter of public interest meriting publication (Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB), [117]).  

Of course, with Campbell there was the additional point of putting the record straight, ie, exposing Campbell’s public lie that she did not take drugs.  Yet it is also not clear why this public interest outweighed the privacy invasion that this information constituted.  Why did the public need to know this?  Or rather, why was this more important than her entitlement to keep this aspect of her private life away from public scrutiny?

As Fenwick and Phillipson have previously said, this concession comes ‘perilously close to destroying’ the notion of informational autonomy underpinning the right (Media Freedom under the Human Rights Act, (OUP, 2006), 804).  The failure by the House of Lords to address this issue clearly has caused difficulties in later cases, particularly Hutcheson v NGN [2011] EWCA Civ 808, Ferdinand v NGN [2011] EHWC 2454 (QB) and McClaren v NGN [2012] EWHC 2466 (QB) where this public right not to be misled has been interpreted generously to justify publications concerning fairly trivial immorality by well-known individuals.

Similarly, in AAA, it is not clear why the identity of the child’s father was of such public interest that it would outweigh the child’s privacy claim.  At first instance, the court put it in these terms: ‘[i]t is said that such information goes to the issue of recklessness on the part of the supposed father, relevant both to his private and professional character, in particular his fitness for public office. I find that [it does].’  What is the value of this information, though, to the electorate and why does it matter?  If the courts are serious about the proportionality exercise then this value should be quantified more explicitly.

Sadly, the binary approach to disposing of MOPI claims undermines the meaningful protection of privacy that was promised by Campbell because the judicial interpretation of public interest has been so generous.  In addition to the public right not to be misled, the courts have also employed the nebulous concepts of role model status and press freedom to criticise to justify interferences with privacy (for further discussion see P. Wragg, ‘The Benefits of Privacy-Invading Expression’ (2013) 64(2) Northern Ireland Legal Quarterly 187).  These devices have protected the press where the claimant’s private life has been judged inconsistent with their public persona or incompatible with their chosen career or harmful to it.

Yet the court’s failure to employ the proportionality test seriously is both understandable and, it is submitted, justifiable.  It is not that different judges will reach different decisions based on the same set of facts.  That possibility is explicitly recognised in Campbell and is arguably an unavoidable feature of the law in any context.  The problem is much deeper.

In short, the Campbell jurisprudence does not equip judges with the proper analytical tools required to conduct the exercise without relying on entirely subjective reasoning.  Admittedly, the notion of proportionality is itself controversial.  However, if one adopts, say, the definition offered by Aharon Barak in his recent work on Proportionality (CUP, 2012), 340-349, he says that the test requires us to compare the benefits and harms of the rights at stake.  As he notes, this is not an evaluation of the societal importance of privacy compared to the societal importance of press freedom.  It is, as he calls it, the marginal social importance of the rights at stake, which I understand to mean an evaluation of the specific consequences caused by the actual interference with either right.

To be sure, the MOPI jurisprudence does allow the courts to conduct this analysis for the privacy claim.  The principles arising from Murray v Express Newspapers Ltd [2008] EWCA Civ 446, [36], enable the court to reach sensible and reliable conclusions about the impact of the actual or potential privacy invasion upon the claimant and his/her family.

Yet the same cannot be said about the freedom of expression claim.  Press freedom is typically interpreted as an audience interest.  Although trial judges are likely to be better placed than those hearing interim relief applications neither will be able to say with any certainty or precision what benefits or harms are caused to audience interests through the publication or non-publication of the information at stake or the detrimental effect on future stories that a damages award would have.  Instead, all a judge can do is to speculate.

This is problematic for the moral judgements that might arise which may disclose more about an individual judge’s feelings about the value of the expression than the audience’s.  In CC v AB [2006] EWHC 3083 (QB), [25], Mr Justice Eady warned that

‘judges need to be wary about giving the impression that they are ventilating, while affording or refusing legal redress, some personal moral or social views, and especially at a time when society is far less homogeneous than in the past…’. 

Although he was principally speaking about judicial approaches to privacy, the comment seems equally applicable to the treatment of free speech claims.

Of course, none of this is intended to deride the significance of Campbell and its legacy.  It remains one of the most significant decisions under the Human Rights Act 1998 and a major step forward in protecting privacy rights.  This paper is really a note of regret that its inherent promise to regulate press exploitation of the private lives of others (and not just celebrities) has not been fulfilled.  The courts have not taken the proportionality exercise seriously enough and so lack the analytical tools to make fine distinctions about the levels of public interest at stake in privacy-invading speech.  They cannot properly evaluate the harms and benefits arising from prospective interferences.  We should not blame judges for this omission – arguably it is beyond their competence to make these decisions – but, as a consequence, it does significantly undermine the value of MOPI in the war on press terror.

Dr Paul Wragg is an Associate Professor of Law and the University of Leeds.

This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.