Centre for Communication Governance at NLU delhi
Foreign Legal Instruments and Case Law

Campbell V. MGN [2004] UKHL 22

Well-known model Naomi Campbell was photographed leaving a rehabilitation clinic, following public denials that she was a recovering drug addict. The photographs were published in a publication run by MGN. Campbell sought damages under the English law. The House of Lords held, 3:2 (Lords Nicholls and Hoffman dissenting), that MGN was liable. Lord Hoffman and Lord Nicholls dissented on the ground 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 they were allowed to state that she was an addict and receiving treatment for her addiction, while the majority (Hale, Hope, Carswell) believed that the picture added something of ‘real significance’.

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Curtis Publishing Co V. Butts 388 US 130 (1967)

In this case, the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals.

The decision held that, while news organizations were protected from liability when printing allegations about public officials under the Supreme Court’s New York Times Co. v. Sullivan decision (1964), they may still be liable to public figures if the information they disseminate is recklessly gathered and unchecked.

The decision was the result of a libel lawsuit filed by former Georgia Bulldogs football coach Wally Butts against the Saturday Evening Post. The lawsuit arose from an article in the magazine alleging that Butts and Alabama head coach Bear Bryant had conspired to fix games. The court ruled in favor of Butts.

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David Murray (through his litigation friends Neil Murray and Joanne Murray) v Express Newspapers and Big Pictures [2008] EWCA Civ 446

D took a photograph of C, the infant son of the writer J.K. Rowling, being pushed by his father down an Edinburgh street in a buggy with his mother walking alongside. The photograph was taken covertly using a long range lens and was later published in the Sunday Express. C (by his parents as litigation friends) issued proceedings against the publisher of the Sunday Express and D for breach of privacy / confidence and under the Data Protection Act 1998. The claim against Express Newspapers was settled. D applied to strike out C’s claim as disclosing no reasonable cause of action. The main issue in the case was relating to C’s liability. C’s claims for breach of privacy / confidence and under the DPA 1998 were struck out. As regards the former claim: “…on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy; and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and decision in Campbell, I am bound to follow Campbell in preference. Because I regard this case as materially indistinguishable from the facts in Hosking v Runting I am satisfied that on that test it has no realistic prospect of success.” The DPA claim was dismissed on grounds that C was unable to establish causation or damage of a species which s.13 allowed to be recovered.

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Hosking V. Runting [2004] NZCA 34

A well-known television personality, Mr. Hosking, asked the High Court of New Zealand to prevent a photographer and the publisher of a magazine from taking and publishing photographs of his children until they turned 18. The High Court ruled against Mr. Hosking, reasoning that there had been no invasion of privacy because the photographs were taken while the children were in a public place, and that people shouldn’t be able to sue about their privacy being invaded anyway. Mr. Hosking brought the case to the New Zealand Court of Appeal, where he argued that people should be able to sue when their privacy has been invaded.

The Court recognised that people in Zealand should be able to sue when their privacy has been invaded and noted the need to develop the common law consistently with New Zealand’s international law obligations to protect privacy as found in international treaties, including the CRC. In this case, however, the Court concluded that privacy had not been violated and the pictures could be published. The Court held that privacy should be protected only where: (1) the information was obtained where there was a reasonable expectation of privacy (for instance, in a family home); and (2) the publicising of that information would be highly offensive to a reasonable person. As such, the protection of children’s privacy is not absolute. Rather, these two criteria must be met before a child or their representative can bring a successful case on invasion of privacy into court.

The Court noted that protection of an individual’s privacy must be balanced against other people’s right to freedom of speech. Even though children should be afforded special consideration due to their vulnerability, children’s privacy can only trump other people’s freedom of speech in limited circumstances. Therefore, children and their representatives can only bring lawsuits about invasion of privacy where the children have been placed in danger or (1) the information about the children was obtained where there was a reasonable expectation of privacy and (2) publicising it would be highly offensive to a reasonable person. The Court found this standard to be consistent with relevant provisions in CRC, which are only directed at preventing serious physical and mental abuse of children. In this case, the photographs of Mr. Hosking’s children were obtained in a public setting where there was no reasonable expectation of privacy and nothing about the photographs was highly offensive to a reasonable person. Furthermore, there was no evidence to suggest there was a serious risk to the children if the photographs were published.

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In Re S (FC) (a Child) [2004] UKHL 47

A child’s older brother, DS, died of acute salt poisoning in the Great Ormond Street Hospital.  At a hearing in July 2002, Hedley J found that the salt poisoning had been administered by the child’s mother.  As a result of this finding, the mother was charged with murder.  In the criminal proceedings against the mother, the judge made an order under s.39 of the Children and Young Persons Act 1933 prohibiting publication of information calculated to lead to the identification of the child.  This order was subsequently discharged on the basis that s.39 was inapplicable because the child was not a witness or otherwise concerned in the proceedings.  The child’s guardian applied to the High Court for an injunction under its inherent jurisdiction preventing publication of any information which might lead to the child’s identification, including the name or address of the child or its school and any picture of the child or of its parents.  Upon considering the interplay between Article 8 and Article 10 of the Convention and the balancing exercise required under the inherent jurisdiction and the Convention, Hedley J decided that the order should contain a proviso such that the newspapers were not prevented from publishing the identity of the defendant or DS or photographs of them in reports of the criminal trial.  The appeal to the Court of Appeal was dismissed. The child’s guardian appealed to the House of Lords.

The House of Lords dismissed the appeal on the following grounds:

Since the Human Rights Act 1998 came into force, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in the present case or in similar cases.  The foundation of the jurisdiction to restrain publicity in a case such as this was now derived from Convention rights..  In carrying out the balancing exercise under the Convention, the court should be guided by the principles established in Campbell v MGN Ltd [2004] 2 WLR 1232.

Article 8 was engaged.  However, the impact on the child was essentially indirect.  He would not be involved as a witness and there would be no need to refer to him.  No such injunction had previously been granted under the inherent jurisdiction or under the Convention.  The interference with Article 8 rights, however distressing for the child, was not of the same order when compared with cases of juveniles directly involved in a trial.

Article 10 was engaged. The freedom of the press was of central importance in a democratic society. A criminal trial was a public event and the glare of contemporaneous publicity ensured that it was conducted properly.  Full and unrestrained reporting of criminal trials promoted the values of the rule of law.

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Katz v US 389 U.S. 347 (1967)

Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami and Boston. Unbeknownst to Katz, the FBI was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Katz was convicted based on these recordings.

“One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”  Certain details, such as shutting the door on the telephone booth, help determine if a person intends for a conversation to be private. Thus, private conversations can be made in public areas.

Justice Harlan’s Concurring opinion summarizes the essential holdings of the majority: “(a) that an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that an invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.”

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McKennitt v Ash [2006] EWCA Civ 1714

In 2005, McKennitt was involved in an acrimonious court case in the United Kingdom when her former friend and employee, Niema Ash, intended to publish a book which contained intimate details of their friendship. McKennitt argued that much of the book contained confidential personal information, which Ash had no right to publish. The English courts found that there had indeed been a breach of confidence and a misuse of McKennitt’s private information, and the case is likely to set important precedents in English law on the privacy of celebrities. The Court of Appeal affirmed the lower court’s decision in 2006, and that affirmation was reaffirmed when the House of Lords declined to hear what would have been a final appeal.

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MGN V. UK App no 39401/04 (ECtHR, 18 Jan 2011)

The case concerned the complaints of the publishing company MGN Limited that the United Kingdom breached its freedom of expression rights as a result of the national courts’ finding against it for breach of Ms. Naomi Campbell’s privacy by publishing articles and pictures in The Daily Mirror about her drug-addiction treatment; and it being ordered to pay “success fees” agreed between Ms. Campbell and her lawyers in relation to the same privacy proceedings.

The Court observed that MGN Limited had been asked to pay the “success fees” which Ms. Campbell had negotiated with her lawyers.

The requirement to pay those fees had been based on domestic legislation, in particular the 1990 and 1999 Acts, the Conditional Fees Arrangement Orders 1995 and 2000 as well as the Civil Procedure Rules and the relevant Cost Practice Directions. The Court also accepted that the “success fee” agreement had sought to ensure the widest possible public access to legal services for civil litigation, including to people who would not otherwise be able to afford a lawyer.

The Court then examined whether the recoverability of substantial “success fees” against unsuccessful defendants in civil actions was reasonable and proportionate.

The Court paid particular attention to the fact that the general “success fee” scheme had been the subject of detailed and lengthy domestic public consultations initiated by the British Ministry for Justice since 2003. While there had been no legislative follow-up to the consultations’ conclusions, they had identified fundamental flaws in the “success fees” scheme, especially in cases such as the present one. Those consultations (and notably the Jackson report) criticised the lack of any qualifying requirements for claimants of “success fees”; the lack of incentive for claimants to control “success fees” given that those were only payable if they won the case and often by the other losing party; the fact that often the losing party was forced to settle early despite good prospects of a successful defence only to avoid ever-mounting “success fees”; and the opportunity for lawyers in the “success fee” scheme to “cherry-pick” cases likely to succeed and to avoid claims with smaller chances of success.

As to the pressure on defendants (including different media and publishers) to settle cases which could have been defended, that represented a risk to media reporting and thus – possibly – to freedom of expression. The Ministry of Justice had acknowledged following those consultations that recoverable “success fees” rendered the costs’ burden in civil litigation excessive and that the balance had swung too far in favour of claimants and against the interests of defendants, particularly in defamation and privacy cases.

Ms. Campbell had been wealthy and therefore not someone who risked not having access to court on financial grounds and for whom the “success fees” scheme had been initially set up. The case of MGN Limited had not entirely lacked merit given that the Court of Appeal and two out of the five judges of the House of Lords had decided in the applicant’s favour in the domestic proceedings. In addition, while the proceedings had been lengthy and somewhat complex, the “success fees” claimed in respect of the two appeals before the House of Lords alone had amounted to more than GBP 365,000.

The Court concluded that the requirement on MGN Limited to pay the “success fees”, which had been agreed by Ms. Campbell and her solicitors, was disproportionate to the aim sought to be achieved by the introduction of the “success fee” system. Accordingly, there had been a violation of Article 10.

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Perry V. The United Kingdom App no 63737/00 (ECtHR, 17 July 2003)

The applicant had been arrested in connection with a series of armed robberies of mini-cab drivers, and released pending an identification parade. When he failed to attend that and several further identification parades, the police requested permission to video him covertly. He was taken to the police station to attend an identity parade, which he refused to do. Meanwhile, on his arrival, he was filmed by the custody suite camera, adjusted to ensure that it took clear pictures during his visit. The pictures were inserted in a montage of film of other persons and shown to witnesses. Two witnesses of the armed robberies subsequently identified him from the compilation tape. Neither Mr. Perry nor his solicitor was informed that a tape had been made or used for identification purposes. He was convicted of robbery and sentenced to five years’ imprisonment.

The Court assessed that the ploy adopted by the police had gone beyond the normal use of this type of camera and amounted to an interference with the applicant’s right to respect for his private life. The interference had not been in accordance with the law because the police had failed to comply with the procedures set out in the applicable code: they had not obtained the applicant’s consent or informed him that the tape was being made; neither had they informed him of his rights in that respect.

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PG and JH V. The United Kingdom App no 44787/98 (ECtHR, 25 September 2001)

B, and other applicants were charged with conspiracy to rob. During their trial, evidence was derived from the use of the covert listening devices. The police also requested itemised billing for calls from the telephone in B.’s flat.

Observing that the information about the use of B.’s telephone was obtained and used in the context of an investigation and trial concerning a suspected conspiracy to commit armed robberies, the Court found that the measure was necessary in a democratic society. There had therefore been no violation of Article 8.

However, the use of covert listening devices was not in accordance with the law existing at the time in question, the Court held that there had been a violation of Article 8.

The court however, held that where the evidence was obtained as a result of entrapment or coercion, and has been subject to examination in an adversarial trial, no unfairness can be made out.

The Court observed that the taped evidence at the trial was not the only evidence against the applicants. Furthermore, they had had ample opportunity to challenge both the authenticity and the use of the recordings. It was also clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it. The Court further considered that there was no unfairness in leaving it to the jury, on the basis of a thorough summing-up by the judge, to decide where the weight of the evidence lay.

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Time Inc V. Hill 385 US 374 (1967)

In 1952, three escaped convicts took James Hill, his wife, and their five children hostage in their Whitemarsh, Pennsylvania, home. After nineteen hours, the family was released unharmed. The convicts were later apprehended in a violent clash with police during which two of them were killed. In 1953, Joseph Hays’ published a novel based on the Hill family’s ordeal. When the novel was subsequently made into a play, Life Magazine (“Life”) printed an article about the play that mirrored many of its inaccuracies concerning the Hill family’s experience. Alleging that it deliberately misrepresented his story, Hill sought damages against Life.

The Court set aside the Appellate ruling against Time because the lower court failed to instruct the jury that Time’s liability was contingent upon a showing that it knowingly and recklessly published false statements about the Hill family. The Court explained that absent a finding of such malicious intent on the part of a publisher, press statements are protected under the First Amendment even if they are otherwise false or inaccurate. The Court remanded for retrial under the new jury instruction.

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Von Hannover V. Germany (2005) 40 EHRR 1

The applicant, Princess Caroline von Hannover, was born in 1957 and is the eldest daughter of Prince Rainier III of Monaco. She is a national of Monaco, where she lives. Since the beginning of the 1990s Princess Caroline von Hannover has been campaigning – often through the courts – in various European countries to prevent photographs about her private life being published in the sensationalist press. She has on several occasions unsuccessfully applied to the German courts for an injunction preventing any further publication of a series of photographs which had appeared in the 1990s in the German magazines Bunte, Freizeit Revue and Neue Post. She claimed that they infringed her right to protection of her private life and her right to control the use of her image. The Federal Constitutional Court granted the applicant’s injunction regarding the photographs in which she appeared with her children on the ground that their need for protection of their intimacy was greater than that of adults. However, the Constitutional Court considered that the applicant, who was undeniably a contemporary “public figure”, had to tolerate the publication of photographs of herself in a public place, even if they showed her in scenes from her daily life rather than engaged in her official duties. The Constitutional Court referred in that connection to the freedom of the press and to the public’s legitimate interest in knowing how such a person generally behaved in public.

The applicant maintained that the decisions of the German courts infringed her right to respect for her private life, as guaranteed by Article 8 of the Convention, since they failed to afford her adequate protection from the publication of photographs taken without her knowledge by paparazzi on the ground that, in view of her origins, she was undeniably a contemporary “public figure”. She also complained of an infringement of her right to respect for her family life.

The Court noted at the outset that certain photographs of the applicant with her children or in the company of an actor at the far end of a restaurant courtyard were no longer the subject of the application, as the Federal Court of Justice had prohibited any further publication of them on the ground that they infringed the applicant’s right to respect for her private life.

There was no doubt that the publication by various German magazines of photographs of the applicant in her daily life either on her own or with other people fell within the scope of her private life. Article 8 of the Convention was accordingly applicable. It was therefore necessary to balance protection of the applicant’s private life against freedom of expression, as guaranteed by Article 10 of the Convention.

Although freedom of expression also extended to the publication of photographs, this was an area in which the protection of the rights and reputation of others took on particular importance, as it did not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution.

The Court considered that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photographs and articles made to a debate of general interest. In the case before it, the photographs showed Caroline von Hannover in scenes from her daily life, and thus engaged in activities of a purely private nature. The Court noted in that connection the circumstances in which the photographs had been taken: without the applicant’s knowledge or consent and, in some instances, in secret. It was clear that they made no contribution to a debate of public interest, since the applicant exercised no official function and the photographs and articles related exclusively to details of her private life.

Furthermore, while the general public might have a right to information, including, in special circumstances, on the private life of public figures, they did not have such a right in this instance. The Court considered that the general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. Even if such a public interest existed, just as there was a commercial interest for the magazines to publish the photographs and articles, those interests had, in the Court’s view, to yield to the applicant’s right to the effective protection of her private life.

The Court reiterated the fundamental importance of protecting private life from the point of view of the development of every human being’s personality and said that everyone, including people known to the public, had to have a “legitimate expectation” that his or her private life would be protected. The criteria that had been established by the domestic courts for distinguishing a figure of contemporary society “par excellence” from a relatively public figure were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a “legitimate expectation” that her private life would be protected.

Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considered that the German courts had not struck a fair balance between the competing interests. Accordingly, it held that there had been a violation of Article 8 of the Convention and that it was not necessary to rule on the applicant’s complaint relating to her right to respect for her family life.

The Court held unanimously that the question of the application of Article 41 of the Convention (just satisfaction) was not ready for determination. It reserved it in its entirety and invited the Government and the applicant to submit observations in writing.

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Von Hannover v Germany (no 2) App no 40660/08 and 60641/08 (ECtHR, 7 February 2012)

In this case, the court held that there had not been a violation of Article 8. In doing so, the Court reiterated the broad scope of Article 8. In relation to the protection of one’s personal image, the Court confirmed that “the right to protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication.” In relation to Article 10, the Court reiterated the importance of “pluralism, tolerance and broadmindedness” in a democratic society and the corresponding necessity of information that is favourably received and that which “offends, shocks, or disturbs”. Photographs, however, particularly those taken for the purposes of “sensationalist” press may amount to a serious intrusion into an individual’s private life and the circumstance in which they are obtained may even invoke a feeling of harassment or persecution on the part of the individual. The Court nonetheless emphasised that Article 8 and Article 10 are of equal value and that the margin of appreciation should be the same in both cases.

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Peck v UK (2003) 36 EHRR 41

The applicant was filmed by a CCTV camera operated by Brentwood Borough Council in a public street moments after he had attempted to commit suicide by slashing his wrists with a kitchen knife. Some months later, the Council issued two photographs taken from the CCTV footage for publication in an article about the preventative benefits of CCTV. The applicant’s face was not specifically masked. Extracts from the CCTV footage were also shown on regional television in which the applicant’s face had been masked at the Council’s request. The Applicant sought judicial review of the Council’s decision to release the CCTV footage. His application was rejected and confirmed by the Court of Appeal. He applied to the ECHR. The court held as follows:

Following the disclosure of the CCTV footage, the applicant’s actions were seen to an extent which far exceeded any exposure to a passer-by or to a security observation and to a degree surpassing that which the applicant could possibly have foreseen. The disclosure by the Council therefore constituted a serious interference with his right to respect for private life. There were not relevant or sufficient reasons to justify the disclosure by the Council without obtaining the applicant’s consent or ensuring as far as possible that his identity was masked. The applicant’s subsequent media appearances did not diminish the serious nature of the interference. Accordingly, the disclosures by the Council were not accompanied by sufficient safeguards and they therefore constituted a disproportionate interference with the applicant’s rights under Article 8.

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