- Whether the photographs and other references to Ms Campbell were ‘sensitive personal data’ within s 2 of the Act
- Whether The Mirror was exempted from liability under s 32 of the Act (processing for journalistic purposes)
- If The Mirror was not exempt under s 32, whether it had contravened the first data protection principle and thus s 4(4) (the duty to comply with the data protection principles)
- If the Mirror contravened the first data protection principle, whether it had established a s 13(3) defence (ie that it had taken such care as in all the circumstances was reasonably required to comply with the first principle).
When Ms Campbell claimed compensation in Naomi Campbell v Mirror Group Newspapers under the Data Protection Act 1998, s 13 for distress caused by articles and accompanying photographs published by The Mirror on 1 and 5 February 2001, she received total compensation of £3,500.
The sum awarded was small. Indeed many questioned whether the experience had been worth it for the supermodel who, in the event, received yet more unwanted publicity in relation to drugs abuse allegations. For the media industry, however, the decision has far greater consequences, as it set an important legal precedent in terms of how publishers, their reporters and photographers should go about obtaining information relating to an individual in future – regardless of whether they are famous.
Online publishers should take particular care to ensure that they comply with the DPA regulations in relation to processing data. The Internet is by nature a rapid medium by which to report the facts. The flip side of this, however, is that working at high speed (for example, for a newswire) makes it far easier to slip up when it comes to broadcasting more information than is necessary or is allowed. Worse still, at the press of a button, the readership is potentially global.
Following the Naomi Campbell judgment, all of us, whether famous or not, are entitled to ‘some space of privacy’.
The court held that The Mirror was within its rights to publish the fact that Ms Campbell was a drug addict and was attending therapy. However, the details of her treatment which Ms Campbell wished to keep private, and photographs of her outside one of the counselling sessions, were considered to be ‘sensitive personal data’, and their publication ‘an unwarranted intrusion’ into her right of privacy. She was awarded £2,500 for breach of the Act, and a further £1,000 aggravated damages for a subsequent article which compared her to a ‘chocolate soldier’.
The facts of the case
On 1 February 2001, The Mirror published an article on its front page, between two colour photographs of Ms Campbell dressed ‘low-key’ in jeans and a baseball cap. The report alleged that she was a drug addict and had attended a meeting at a branch of Narcotics Anonymous in Chelsea. It described the two-hour session as ‘gruelling’ and alleged that Ms Campbell regularly attended such meetings ‘twice a day’. In relation to Narcotics Anonymous, it said: ‘The organisation encourages addicts to stay away not only from drugs but also from alcohol and even from cigarettes as part of a 12-step plan to recovery. They take it one day at a time, starting with the acceptance that there is a problem’.
According to the The Mirror, a freelance photographer had come across the story by chance, having recognised Ms Campbell in the street. The trial judge held that the photographs had been obtained surreptitiously, as the photographer had concealed himself in a car some distance from her. While the original source of the story was not confirmed, it is thought to have come from either a member of Narcotics Anonymous or one of Ms Campbell’s staff.
Ms Campbell issued a complaint, via her solicitor, the same day. Four days later the newspaper published a second article this time attacking her allegation that it had breached her privacy. On 7 February, a third article appeared under the heading: ‘Fame on you, Ms Campbell’. It compared Ms Campbell, amongst other things, to a ‘chocolate soldier’.
How was the Data Protection Act breached?
In relation to the terms of definition stated in the Act, Ms Campbell herself was known as a ‘data subject’, The Mirror was a ‘data controller’ and the obtaining, preparation and publication of Ms Campbell’s personal data was ‘processing’. As such, The Mirror was subject to the obligations and restrictions imposed by the Act.
The court had to consider the following issues in establishing whether or not The Mirror had breached the 1998 Act:
The details the therapy Ms Campbell was receiving at Narcotics Anonymous, including the captioned photographs, was clearly information relating to her physical or mental health or condition (ie her drug addiction) and therefore amounted to ‘sensitive personal data’.
The Mirror was not exempt from liability for such processing under s 32 because, in the judge’s view, that section deals only with pre-publication processing, and is aimed at limiting restraints on publication by, for example, the granting of an injunction. s 32(1) exempts:
‘processing . undertaken with a view to the publication . of any journalistic . material, [if] the data controller reasonably believes that . publication would be in the public interest’ [authors’ italics].
Although the actual taking of the photographs and the writing of the article itself might have been exempt under this section, The Mirror could not claim the exemption once it had published because s 32(4) states:
‘Where at any time . in any proceedings against a data controller under . section 13 the data controller claims . that any personal data to which the proceedings relate are being processed . with a view to publication by any person of any journalistic . material which . had not previously been published by the data controller, the court shall stay the proceedings.’ [again, authors’ italics].
On the question of whether The Mirror contravened the first Data Protection Principle, there were three, cumulative, requirements:
(a) That the processing be fair.
In assessing fairness, the court had to consider how the personal data were obtained. As the freelance photographer was concealed in a car some distance from Ms Campbell, she was unaware that the photographs were being taken and therefore had no opportunity to either evade being photographed or refuse consent. Such processing was held to be in breach of the first data protection principle.
(b) That one of the Schedule 2 conditions was met.
Here The Mirror relied on Condition 5(d), that the processing was in the public interest, and Condition 6(1), that the processing was necessary for its legitimate interests. In relation to Condition 5(d), the commercial publication of newspapers was not considered an exercise of a function of a public nature. In relation to Condition 6(1), although the facts (Ms Campbell’s drug addiction and that she had been receiving therapy) were seen to be necessary for the paper’s legitimate interests, publishing the details of that therapy was not; it was an unwarranted intrusion into her right of privacy.
(c) That one of the Schedule 3 conditions was met
The Mirror chose to rely on the Data Protection (Processing of Sensitive Personal Data) Order 2000 (SI 2000/417) for protection, which permits the disclosure of personal data which ‘is in the substantial public interest’ and ‘is in connection with . the commission by any person of any unlawful act’ (art 3(1)(b)(i)). The Court held that disclosure of the details of Ms Campbell’s therapy was not in the substantial public interest. In addition, it construed art 3(1)(b)(i) narrowly, saying that the disclosure (by publication) of the sensitive personal data was not in connection with the commission of drug offences, but in connection with Ms Campbell’s efforts to avoid committing drug offences.
The Court held that The Mirror had ‘utterly failed’ to establish a s 13(3) defence.
The Lessons
The Naomi Campbell case did not tell us much more than we already knew about how the Data Protection Act 1998 could be applied. However, it did demonstrate ways in which the defence of exemptions might fail.
The court held that s 32(4), which refers specifically to proceedings pre-publication, implies that the s 32 exemption can never apply where the offending material has already been published. This seems to be a very narrow interpretation of s 32 as, in the authors’ view, s 32 must apply to the processing of personal data which are processed with a good faith intention to publish, whether or not such publication actually takes place. After all, surely it must have been the photographer’s intention when he took the photographs of Ms Campbell to have them published, in which case it seems far fetched that the subsequent act of publication should somehow deprive the data controller of a s 32 defence.
In relation to Condition 6(1), Mr Justice Morland agreed that the reporting of the fact of Ms Campbell’s drug addiction and having therapy was necessary for the paper’s legitimate interests, but on the principle of proportionality publishing details of such therapy (principally that she was attending sessions at Narcotics Anonymous) was not in the public interest.
Recommendation 1/97 (of 25 February 1997) made by a working party set up under Articles 29 and 30 of Directive 95/46 EC (which the Act implements in the UK) states in relation to the Directive that:
‘Derogations and exemptions under article 9 [processing for journalistic purposes] . must follow the principle of proportionality . In evaluating whether exemptions or derogations are proportionate, attention must be paid to the existing ethical and professional obligations of journalists as well as to the self-regulatory forms of supervision provided by the profession.’
The judge was clearly influenced by the fact that the photographs of Ms Campbell were obtained covertly by a photographer using a long lens and, in considering proportionality, he took into account sector specific regulatory guidelines. Paragraph 3 of the Press Complaints Commission Code of Practice states ‘The use of long lens photography to take pictures of people in private places without their consent is unacceptable.’ ‘Private places’ are defined as ‘public or private property where there is a reasonable expectation of privacy’. So, in relation to the photographs of Ms Campbell, there is a clear basis for the judge’s decision.
In the authors’ view, the distinction made in the text between what constitutes ‘facts’ or ‘details’ is less apparent. There were actually very few ‘details’ published in the body of the article itself – beyond the actual naming of Narcotics Anonymous – and those that were seem to have been of a general nature, describing the way Narcotics Anonymous treats all its members rather than Ms Campbell in particular. Is there really any distinction in data protection terms between reporting the fact of drug addiction and the details of the organisation where the addict seeks help? Both, it seems to the authors, relate clearly to the individual’s physical or mental health or condition.
The decision appears to suggest that the legitimate interests exemption might have applied if the article had been published without the accompanying photographs. Similarly, it is arguable that, in order to show the public that Ms Campbell’s denials of addiction were lies, The Mirror needed to show some evidence, and indeed did so by naming Narcotics Anonymous and publishing pictures of her leaving one of its meetings.
Similarly, in relation to SI 2000/417, the judge’s decision would not have changed in any event (because in his view the conditions of art 3(1) are cumulative). It is the authors’ view, on the facts, that he made a distinction between publication of the fact of Ms Campbell’s attending therapy and the details of that therapy which seems far from clear. As such, it is far from convincing that the former can be in the substantial public interest, but that the latter is not. In the judge’s own words:
‘Clearly The Mirror was fully entitled to put the record straight and publish that [Ms Campbell’s] denials of drug addiction were deliberately misleading.’ Conclusion
Conclusion
Mr Justice Morland was clearly influenced in this case by two factors, both of which were seen to be extremely prejudicial to Ms Campbell and explain a great deal about the outcome of the case. The first of these was the obtaining of photographs by The Mirror surreptitiously; the second, was the belief that the articles might discourage Ms Campbell from continuing to attend meetings at Narcotics Anonymous, which would be clearly to her detriment.
All data controllers should be extremely wary of the requirements of the DPA 1998 which are now fully in force and apply not only to the obtaining and processing of data, but the manner in which material is stored and published. Web site owners should ensure that their databases are constantly monitored and updated and that, as with offline publishing, information has been obtained from reliable sources following the correct procedures.
While the Act may appear to offer plenty of get-out clauses for all kinds of processing, the Naomi Campbell case has demonstrated that the rights and freedoms of the individual to a certain amount of privacy in relation to data held about them are seen as of paramount importance by the courts.
Online publishers could do well to learn from this case, as the small award granted to Ms Campbell related to the particular circumstances of the case rather than the gravity of the breach. Next time, the figure could be much higher.
The authors are a partner and solicitor at City law firm Field Fisher Waterhouse, London. They can be contacted at ndw@ffwlaw.com or mjt@ffwlaw.com
