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http://www.guardian.co.uk/media/2002/nov/11/mondaymediasection.privacy
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Why Naomi should win
As Naomi Campbell heads for the House of Lords today in the latest instalment of her battle with the Mirror over the invasion of her privacy, her lawyer Keith Schilling airs the arguments
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Keith Schilling
The Guardian, Monday 11 November 2002
Tuesday January 30 2001 started out like many others for Naomi Campbell. She attended a 7.30am meeting of Narcotics Anonymous (NA) in south west London. At these meetings people who suffer from drug addiction or alcoholism share their experiences in a confidential group setting and give each other support. At lunchtime she went to a further NA meeting in Chelsea. That evening she went to a third meeting to support a friend of hers.
Attending NA meetings is not, of course, a criminal offence. Nor is it shameful in any way. It is, however, private and confidential as everyone who participates recognises. After all, who would ever attend such a meeting and speak openly if there was the slightest possibility that a Daily Mirror journalist was sitting in on the meeting, pretending to be a fellow sufferer? But that is exactly what happened that evening.
Earlier that day, and unknown to Campbell, the Mirror had received information from an informant that she would be attending NA later that day. They provided the paper with times and places. Campbell had been attending NA in this country for two years previously - this had been known to quite a few people but it had never been published. Similar information had reached another newspaper group previously, it had declined to act upon it or publish the information in any way for the obvious reason that it was private. Perhaps it recognised that publication would interfere with therapy as well as undermining the principles of NA and also its sister organisation Alcoholics Anonymous.
The Mirror's informant was never identified, nor did it become apparent whether the informant had been paid money by the Mirror. But it would be surprising if they had not. It is a curious feature of this case that the newspaper could keep its informant's identity confidential, but Campbell could not keep details of her therapy confidential.
The Mirror's response to the informant's disclosures was to send one of its photographers to the lunchtime meeting in Chelsea. From 50 yards away, using a telephoto lens, he photographed not only Campbell outside the meeting but also other people who had attended. Later that evening, a female journalist from the Mirror was dispatched to the women-only NA meeting. No doubt other people attending the meetings mistakenly assumed that the journalist was a fellow sufferer. The journalist reported back to the editor what she had seen and heard at that meeting.
A day or so later, when the Mirror's front-page story had been finalised, the editor rang Campbell's agent. He told her that it was "a stroke of luck" that they had been able to photograph her leaving the lunchtime NA meeting as a journalist just happened to be passing. When the case eventually came to court, the judge found that this statement was untrue. Campbell's agent said it would be immoral to publish this type of information. The Mirror published it anyway and later said that Campbell's agent had "cooperated" in the publication of its article.
The Mirror's front page story did not merely expose Campbell as a drug addict, it provided details of her therapy. It referred to how fragile she was and said she was courageous to be dealing with it. This was later described as the newspaper dealing with the issue "sympathetically". One could be forgiven for thinking it had been dealt with in this way not for altruistic reasons but to lessen the prospect of public outrage and legal proceedings. It also published a photograph of her (and other sufferers) leaving NA. She found this objectionable on her own behalf as well as theirs. Although the faces of the other NA members were pixelated, they - and presumably a number of other people - would have known who they were.
It was obviously essential to Campbell that she could continue to attend NA meetings without being under surveillance (in or out of the meetings) or exposed to more publicity. The Mirror was invited to confirm that it would not further invade her privacy. No confirmation was forthcoming. Following the issue of legal proceedings against the Mirror, when Campbell complained of an invasion of privacy, the "sympathetic" tone of its coverage changed into outright attacks, including the now infamous "chocolate soldier" article. Both the original court and the appeal court were unanimous that this conduct was capable of increasing damages as an aggravation of the original injury to Campbell provided the claim itself was upheld.
The high court judgment in March 2002 upheld Campbell's claim in full. The Mirror, by now joined by other tabloids, continued its assaults on her. The Mirror appealed and the court of appeal expedited the appeal which was heard in July, but judgment was not handed down until October. The court of appeal upheld the appeal and dismissed Campbell's claim.
The court of appeal's reasoning was basically threefold. It held that therapy is not to be equated with conventional medical treatment in terms of the privacy protection to be afforded to it. The judgment provides no reasoning for this and it is difficult to conceive what the reasoning could be. Therapy deals with life-threatening conditions such as major depression leading to suicide, alcoholism and drug addiction. It would include NA, Alcoholics Anonymous, the Samaritans, Relate, group and individual psychotherapy. It must cover the treatment of tens of thousands of patients. The NHS would probably be overwhelmed without the support that voluntary organisations provide. Conventional medicine's response to these types of problems is limited (assuming the NHS could afford to fund it), involving lengthy hospitalisation and/or prescription of drugs. Therapy therefore ought to be accorded at least the same level of privacy protection as conventional medical treatment.
The second rationalisation by the court of appeal is that if you make a public statement inconsistent with a private state of affairs this may rob the private state of affairs of its protection. So the paradox is that you must be open and honest about your private life if you want to protect your privacy. In other words, since Campbell denied she had a drug problem, this entitled the Mirror to publish information, obtained through highly dubious means, to prove this was untrue.
But as Campbell explains, and as is common sense anyway, an inability to acknowledge the problem is part of the condition. Sufferers initially confront their problems through private disclosures in group therapy sessions which are understood to be confidential. It is understandable that someone who is suffering from a life-threatening or even just plain embarrassing condition may wish to suppress this fact completely, or until such time as they have dealt with it. If denial of a particular condition is a grounds for publicising not only the condition itself but also, as the court of appeal upheld, details of the condition, any newsworthy person in therapy is in for a very rough ride indeed.
Take a hypothetical example - a well-known public figure who, for compelling medical reasons, has to undergo a termination or some other sensitive medical procedure. Unknown to her, a photograph was taken of her entering or leaving a particular clinic. The lady in question is still very distressed by the whole experience and understandably does not wish her young family to read about it in the newspapers. As a result, when contacted by the press, she decides to deny the story. On the court of appeal's reasoning, not merely can the facts of the termination be published and the photograph of her leaving the clinic looking distraught, but also details concerning it.
The third principal reason given by the court of appeal for not upholding Campbell's claim was that some of the information published by the Mirror was inaccurate. This is a highly undesirable development both for the individual (since he or she will be deprived of protection) but also for the general public since the media will have a positive incentive to convey the same basic picture but with some details which are exaggerated or plain wrong. But if inaccurate details of one's private life are published you can only correct the report by permitting publication of the true private details. The PCC code of conduct requires newspapers to take care not to publish inaccurate information. The court of appeal judgment provides them with an incentive to do the opposite. Are newspaper editors, often celebrities themselves these days, to be stripped of any protection for their private life because their paper condemns infidelity and drunkenness, or double standards in others? If so, can we expect our press to be much kinder in future?
Respect for privacy is not a charter to enable celebrities to complain of unwanted photographs of them pushing a trolley around a supermarket or window shopping in the King's Road, or a means to conceal hypocrisy. It is a basic human right to be let alone to receive therapy or treatment without intrusive surveillance and the glare of the media spotlight which can self-evidently be harmful to that treatment.
When the courts come to balance freedom of expression with individual rights of privacy they must take into account not only the impact on the individual of interference with therapy or medical treatment but also the wider implications. For that reason a successful appeal from this decision to the House of Lords, which is why today we seek leave to appeal, is crucial. Not for trolley-pushing or win dow-shopping celebrities but for anyone needing therapy. People seeking help through therapy need the confidence of knowing in advance that the details will always remain confidential. If there is the slightest possibility that the protection of confidentiality will be removed at a later date it will totally undermine all types of therapy. There is a far greater public interest in promoting therapy than there ever is or could be in gratuitously publishing details of someone's treatment.
The Mirror said of the court of appeal ruling: "It strikes a historic blow for freedom of the press." The mere invocation of the words "freedom of the press" triggers a conditioned reflex or a hypnotic suggestion for a call to arms. But no one had questioned, in these proceedings, the ability of the press to report the fact that Campbell had had a problem with drugs and had misled the press previously about it. Freedom of expression is not the exclusive preserve of the press. What of the freedom of people in therapy to express themselves openly but in confidence? Where has that gone? The integrity of the press is enhanced, not endangered, by fairly recognising that some aspects of our private lives are, and should forever remain, confidential.
· Keith Schilling is senior partner at media law firm Schillings
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