Campbell v MGN Ltd

In the High Court, MGN was found liable and Campbell was awarded £2,500 in damages, plus £1,500 in aggravated damages. MGN appealed.

The court of appeal found that MGN was not liable and that the photographs could be published as they were peripheral to the published story and served only to show her in a better light. It was within journalists' margin of appreciation to decide whether such "peripheral" information should be included.

Campbell appealed on the basis of inter alia that the aforementioned breach of confidence had occurred and was subject to human rights principles of privacy.

The House of Lords held MGN liable by majority vote, with Lords Nicholls and Hoffmann dissenting. Baroness Hale, Lord Hope and Lord Carswell held that the picture added something of 'real significance'. The court engaged in a balancing test by firstly determining whether the applicant had a reasonable expectation of privacy (thus determining whether Article 8 was involved). It then considered whether, if the claimant was successful, that would result in a significant inference with freedom of expression (balancing Article 8 with Article 10). It was held that Campbell's right to privacy (Schedule 1, Part I, Article 8) outweighed MGN's right to freedom of expression (ECHR Article 10).

Lord Hoffmann and Lord Nicholls dissented on the grounds that as the Mirror was allowed to publish the fact that she was a drug addict and that she was receiving treatment for her addiction that printing the pictures of her leaving her NA meeting was within the margin of appreciation of the editors, as it was allowed to state that she was an addict and receiving treatment for her addiction. Lord Nicholls observed that "confidence" was an artificial term for what could more naturally be termed "privacy".

Lord Hope of Craighead noted that a duty of confidence arises wherever the defendant knows or ought to know that the claimant can reasonably expect their privacy to be protected and so approved A v B plc.[1] If there is doubt, the test "what is highly offensive to a reasonable person" in the plaintiff's position,[2][3] can be used for guidance.

Baroness Hale stated:

The basic principles

132. Neither party to this appeal has challenged the basic principles which have emerged from the Court of Appeal in the wake of the Human Rights Act 1998. The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights. In a case such as this, the relevant vehicle will usually be the action for breach of confidence, as Lord Woolf CJ held in A v B plc [2002] EWCA Civ 337, [2003] QB 195, 202, para 4:

"[Articles 8 and 10] have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court's approach to the issues which the applications raise has been modified because, under section 6 of the 1998 Act, the court, as a public authority, is required not to 'act in a way which is incompatible with a Convention right'. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of these articles."