In January 1990 the television actor Gorden Kaye, star of 'Allo 'Allo, was driving in a gale when a piece of wood smashed through his windscreen. He sustained severe head injuries, spending three days on a life support machine.
Kaye was just out of intensive care and lying heavily sedated in a private room when a reporter and photographer from the tabloid Sunday Sport sneaked in, ignoring a notice banning unauthorised visitors. The still-confused actor told the reporter about the incident and the photographer snapped pictures till nurses ejected the pair.
The actor's agent tried to stop the paper publishing the interview. But there was no right to privacy in English law and the courts found themselves powerless. The most they could do was insist that the paper make it clear that the story had been published without Kaye's consent.
Figure 1.
Supermodel Naomi Campbell: legal victory
Credit: MICHAEL LLOYD/REX FEATURES
Much judicial handwringing followed as commentators suggested that the judges should have been bolder and more inventive. Fast forward to 1998 and the enactment of the Human Rights Act, making the European Convention on Human Rights part of UK law. Article 8 of the convention guarantees the right to respect for private and family life. Would this allow individuals to sue for invasion of privacy?
Since the act came into force in October 2000, it has become clear that the answer is no. The judges have not, as some had expected, developed on overall right to sue for invasion of privacy, but have extended the law to give more protection to those who use the existing remedy of suing for breach of confidence. Celebrities must still sue for breach of confidence, but the Human Rights Act is extending the rights of individuals, however high profile, to keep the private parts of their life private.
The House of Lords judgment that last week handed a victory to the supermodel Naomi Campbell is a significant step along the route to a law of privacy. Under the headline “Naomi: I am a drug addict,” the Daily Mirror published a front page splash in 2001 revealing that Campbell was addicted to drugs but was going to Narcotics Anonymous meetings in a “courageous bid” to beat her addiction. A picture taken covertly showed her outside Narcotics Anonymous in Chelsea, London, with others whose faces (unlike hers) were pixillated.
She immediately sued for breach of confidence. The problem was that she had previously denied, in a television interview, any involvement with drugs. Her lawyers conceded that the Mirror was entitled, in the public interest, to put the record straight and, in fairness to her, to go on to report that she had taken steps to deal with her addiction. But they argued that the paper had gone too far in publishing the picture, and in revealing details of her treatment, where she was being treated, and how often she went to Narcotics Anonymous meetings.
Balancing the paper's right to impart information to the public against her right to privacy, the high court judge agreed and awarded her £3500 damages. The court of appeal overturned that judgment, ruling that the extra details were not significant and that the paper should be given a certain latitude in adding colour and detail to the bare story. In the final instalment last week, the law lords, by a 3-2 majority, agreed with the original judge that the paper had over-stepped the mark in publishing the picture and the extra details and reinstated the damages award.
Along the way they stated some important principles, which are certain to be invoked in future cases to bar newspapers from disclosing that celebrities have checked into rehab. As the law lords pointed out, information about an individual's medical condition and its treatment have long been regarded as confidential. The court of appeal, however, had drawn a distinction between group therapy through an organisation such as Narcotics Anonymous and treatment by a doctor. Most of the law lords rejected the suggestion that traditional medical treatment was more deserving of protection. They also accepted that addiction is a medical condition that addicts are entitled to keep private.
Lady Hale, the only female law lord, said the information in Campbell's case was of exactly the same kind as a doctor would keep on medical records. The details about the therapy Campbell was receiving from Narcotics Anonymous were analogous to details about a medical condition or its treatment, and amounted to private information importing a duty of confidence, the law lords said.
Had Campbell never lied about her drug use, it seems clear that her right to privacy would have outweighed the freedom of expression right to disclose her addiction at all, or the fact that she was receiving treatment. Critical to the exercise of deciding the degree of confidentiality to be attached to therapy for drug addiction, the judges said, was an assessment of whether disclosure would be likely to disrupt the treatment. The private nature of Narcotics Anonymous meetings encouraged addicts to attend them in the belief they could do so anonymously. The assurance of privacy was an essential part of the exercise. The therapy was at risk of being damaged if details of it became public
Which brings us back to Gorden Kaye. Would someone in his position be able to get an injunction stopping publication if a paper pulled a similar stunt today? Almost certainly, say lawyers, thanks to the Human Rights Act.