ECtHR upholds Campbell v MGN
Just under seven years after the House of Lords found by 3 to 2 against the Daily Mirror in the landmark privacy case by Naomi Campbell, the European Court of Human Rights has rejected MGN's attempt to persuade it that UK law was incompatible with Article 10.
The facts of Campbell are too familiar to bear repetition here. The basis of the ECtHR's finding that the decision of the UK courts did not interfere with MGN's right to freedom of expression was as follows. First, the court considered that the House of Lords had correctly applied the core Article 10 principles and had recognised the importance of the public interest in responsible journalism. Second, the court noted that the difference between the five judges in the House of Lords boiled down to a difference over whether publication of the information about Campbell, including the photographs, was or was not a justifiable interference with editorial freedom and judgment. Noting that the UK courts had considered the matter over nine days and issued a number of detailed judgments, and having regard to the margin of appreciation accorded to decisions of national courts, the ECtHR said that strong reasons would be required before it reached a conclusion that the UK courts' final decision was wrong. Third, the court found that the reasoning of the majority in the House of Lords was, in any event, persuasive. There was a degree of intimacy about the additional information and a degree of intrusiveness about how it had been obtained. There was no countervailing necessity to publish the information, the credibility of the story already being assured by the rest of the content.
Although the ECtHR found there was no violation of MGN's Article 10 rights arising from the privacy finding, it did find that MGN's Article 10 rights had been violated by the costs regime in force and in particular the requirement that MGN was liable for the very high success fees charged by Naomi Campbell's solicitors and Counsel. That aspect of the judgment is dealt with on the Inforrm blog here.
This is a disappointing decision for the media, which will face continuing uncertainty over how its editorial judgments may be perceived by the courts. It should not be forgotten that in the Campbell case, it was accepted that the disclosure of Naomi Campbell's drug-taking was in the public interest - what was in issue was the comparatively narrow question of how to draw the balance between Articles 8 and 10 in presenting that story.
In the House of Lords Lord Hoffmann recognised that freedom of expression would be unnecessarily inhibited unless journalists and editors were given 'reasonable latitude' as to the manner in which information is conveyed to the public. As Judge Bjorgvinsson observed in his dissenting judgment, the majority decision of the ECtHR 'simply defers to the assessment made by the domestic courts'. In the words of Judge Bjorgvinsson:
This approach is inconsistent with the 'strict scrutiny' that is usually found in this Court's case law in balancing Article 8 and Article 10 rights where the Court regularly makes its own independent assessment of the facts involved and of the application of the relevant principles to those facts and it frequently substitutes its own views for those of the domestic courts. It has been the consistent approach of this Court that it is not enough, in itself, that the domestic courts consider the relevant principles; they must also be applied correctly ...
Judge Bjorgvinsson agreed with the views of the minority in the House of Lords - Lords Hoffmann and Nicholls - that the additional information did not reveal anything of great significance but served mostly to add 'colour and conviction' and was within the limits of journalistic discretion. Is this not the better approach - having decided that a story is in the public interest, as in Campbell, should it not be left up to editors how best to present that story?
Judge Bjorgvinsson also (rightly) took Baroness Hale to task for having insisted that it was “not necessary to publish any further information ...”, pointing out that the test implied in that opinion is incorrect:
From the point of view of journalistic discretion in the presentation of a legitimate story, it is the restriction on freedom of expression that must be justified by reference to 'necessity' and not the publication as such.
See further sections 3.5 and 3.8 of the Privacy Law Handbook