Extract from the speech of Lord Hope in the case of Campbell v MGN

Extract from the speech of Lord Hope in the case of Campbell v MGN
[2004] 2 AC 457 241
104 In my opinion the Court of Appeal's approach is open to the criticism that… they failed to carry out the
required balancing exercise.
105 The context for this exercise is provided by articles 8 and 10 of the Convention. The rights guaranteed by
these articles are qualified rights. Article 8(1) protects the right to respect for private life, but recognition is given
in article 8(2) to the protection of the rights and freedoms of others. Article 10(1) protects the right to freedom
of expression, but article 10(2) recognises the need to protect the rights and freedoms of others. The effect of
these provisions is that the right to privacy which lies at the heart of an action for breach of confidence has to be
balanced against the right of the media to impart information to the public. And the right of the media to impart
information to the public has to be balanced in its turn against the respect that must be given to private life…..
As Sedley LJ pointed out in Douglas v Hello! Ltd [2001] QB 967, 1004, para 135:
"The European Court of Human Rights has always recognised the high importance of free media of
communication in a democracy, but its jurisprudence does not – and could not consistently with the Convention
itself – give article 10(1) the presumptive priority which is given, for example, to the First Amendment in the
jurisprudence of the United States' courts. Everything will ultimately depend on the proper balance between
privacy and publicity in the situation facing the court."
107 I accept, of course, that the importance which the Court of Appeal attached to the journalistic package finds
support in the authorities. In Jersild v Denmark (1994) 19 EHRR 1, para 31 the European court, repeating what
was said in Observer and Guardian v United Kingdom (1991) 14 EHRR 153, para 59, declared that freedom of
expression constitutes one of the essential foundations of a democratic society and that the safeguards to be
afforded to the press are of particular importance. It then added these comments in para 31:
"Whilst the press must not overstep the bounds set, inter alia, in the interest of 'the protection of the reputation
and rights of others', it is nevertheless incumbent on it to impart information and ideas of public interest. Not
only does the press have the task of imparting such information and ideas: the public also has a right to receive
them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'."
108 *487 The freedom of the press to exercise its own judgment in the presentation of journalistic material was
emphasised in a further passage in Jersild's case where the court said, at p 26, para 31:
"At the same time, the methods of objective and balanced reporting may vary considerably, depending among
other things on the media in question. It is not for this court, nor for the national courts for that matter, to
substitute their own views for those of the press as to what technique of reporting should be adopted by
journalists. In this context the court recalls that article 10 protects not only the substance of the ideas and
information expressed, but also the form in which they are conveyed."
In Fressoz and Roire v France (1999) 31 EHRR 28, 60, para 54 the court said that in essence article 10 leaves it
for journalists to decide whether or not it is necessary to reproduce material to ensure credibility, adding:
"It protects journalists' rights to divulge information on issues of general interest provided that they are acting in
good faith and on an accurate factual basis and provide 'reliable and precise' information in accordance with the
ethics of journalism."
…110 The need for a balancing exercise to be carried out is also inherent in the provisions of article 10 itself …
…111 Section 12(4) of the Human Rights Act 1998 provides:
"The court must have particular regard to the importance of the Convention right to freedom of expression and,
where the proceedings relate to material which the respondent claims, or which appears to the court, to be
journalistic, literary or artistic material (or to conduct connected with such material), to--(a) the extent to which-
-(i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the pubic interest
for the material to be published; (b) any relevant privacy code."
But, as Sedley LJ said in Douglas v Hello! Ltd [2001] QB 967, 1003, para 133, you cannot have particular regard
to article 10 without having equally particular regard at the very least to article 8: see also In re S (A Child)
(Identification: Restrictions on Publication) [2004] Fam 43, 72, para 52 where Hale LJ said that section 12(4)
does not give either article pre-eminence over the other. These observations seem to me to be entirely consistent
with the jurisprudence of the European court, as is the following passage in Sedley LJ's opinion in Douglas, at p
1005, para 137:
"The case being one which affects the Convention right of freedom of expression, section 12 of the Human
Rights Act 1998 requires the court to have regard to article 10 (as, in its absence, would section 6). This,
however, cannot, consistently with section 3 and article 17, give the article 10(1) right of free expression a
presumptive priority over other rights. What it does is require the court to consider article 10(2) along with
article 10(1), and by doing so to bring into the frame the conflicting right to respect for privacy. This right,
contained in article 8 and reflected in English law, is in turn qualified in both contexts by the right of others to
*489 free expression. The outcome, which self-evidently has to be the same under both articles, is determined
principally by considerations of proportionality."
It is to be noted too that clause 3(i) of the Code of Practice of the Press Complaints Committee acknowledges
this limitation. It states that a person may have a reasonable expectation of privacy in a public place.
Striking the balance
112 There is no doubt that the presentation of the material that it was legitimate to convey to the public in this
case without breaching the duty of confidence was a matter for the journalists. The choice of language used to
convey information and ideas, and decisions as to whether or not to accompany the printed word by the use of
photographs, are pre-eminently editorial matters with which the court will not interfere. The respondents are
also entitled to claim that they should be accorded a reasonable margin of appreciation in taking decisions as to
what details needed to be included in the article to give it credibility. This is an essential part of the journalistic
exercise.
113 But decisions about the publication of material that is private to the individual raise issues that are not simply
about presentation and editing. Any interference with the public interest in disclosure has to be balanced against
the interference with the right of the individual to respect for their private life. The decisions that are then taken
are open to review by the court. The tests which the court must apply are the familiar ones. They are whether
publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its
publication are proportionate to the harm that may be done by the interference with the right to privacy. The
jurisprudence of the European Court of Human Rights explains how these principles are to be understood and
applied in the context of the facts of each case. Any restriction of the right to freedom of expression must be
subjected to very close scrutiny. But so too must any restriction of the right to respect for private life. Neither
article 8 nor article 10 has any pre-eminence over the other in the conduct of this exercise. As Resolution 1165 of
the Parliamentary Assembly of the Council of Europe (1998), para 11, pointed out, they are neither absolute not
in any hierarchical order, since they are of equal value in a democratic society.
… 123 The same process of reasoning that led to the findings in Peck that the article 8 right had been violated
and by the majority in Aubry that there had been an infringement of the claimant's right to respect for her private
life can be applied here. Miss Campbell could not have complained if the photographs had been taken to show the
scene in the street by a passer-by and later published simply as street scenes. But these were not just pictures of a
street scene where she happened to be when the photographs were taken. They were taken deliberately, in secret
and with a view to their publication in conjunction with the article. The zoom lens was directed at the doorway
of the place where the meeting had been taking place. The faces of others in the doorway were pixelated so as not
to reveal their identity. Hers was not, the photographs were published and her privacy was invaded. The
argument that the publication of the photograph added credibility to the story has little weight. The photograph
was not self-explanatory. Neither the place nor the person were instantly recognisable. The reader only had the
editor's word as to the truth of these details.
124 Any person in Miss Campbell's position, assuming her to be of ordinary sensibilities but assuming also that
she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction,
would have known what they were and would have been distressed on seeing the photographs. She would have
seen their publication, in conjunction with the article which revealed what she had been doing when she was
photographed and other details about her engagement in the therapy, as a gross interference with her right to
respect for her private life. In my opinion this additional element in the publication is more than enough to
outweigh the right to freedom of expression which the defendants are asserting in this case.’