A new right to privacy?

Naomi Campbell's victory in court gives celebrities a chance to keep their personal lives private. But, asks Robert Verkaik, is this necessarily in the public's best interests?

Wednesday was a bad day for Fleet Street. How else does one react to the news that a publicity-seeking model who lied in court won damages from a newspaper that the judge had praised for its original story? Surely the privacy rights of celebrities have been given precedence over the freedom of the press?

But the wildly conflicting interpretations that followed Naomi Campbell's victory against The Mirror last week demonstrate just how much work the courts have to do before it can be said that there is a free-standing law of privacy in this country.

First, Ms Campbell's lawyer, Keith Schilling, hailed Mr Justice Morland's ruling as a landmark judgment that had helped to develop the law of privacy in favour of the celebrity. He said: "The courts will now protect privacy through a combination of existing confidentiality law and the European convention on human rights." Then, another lawyer, Sarah Thomas, from London law firm Charles Russell, called Mr Schilling's comments "disingenuous". She explained: "It is important for the media to understand that Naomi Campbell did not pursue damages purely for invasion of privacy."

What Ms Thomas failed to mention is that her law firm has been instructed in the next big privacy trial. Ms Thomas is advising a photographic agency in the case involving the Radio 1 DJ, Sara Cox, who is seeking redress over the publication of nude pictures of her, published in the Sunday People, taken while she was on honeymoon. Interestingly, Mr Schilling is acting for Ms Cox.

Placed in their proper context, the views of these two media lawyers represent the vested interests as well as the two sides of the privacy debate.

So perhaps the true gravity of Mr Justice Morland's ruling is more clearly reflected in the suggestion by the editor of The Sun, David Yelland, that his own paper and its most "bitter rival", The Mirror, should form some kind of unholy alliance to defeat the powers of privacy.

In law, winning is everything. The law reports do not record whether victories were pyrrhic or hollow. When lawyers go to court citing judges in cases that support their arguments, they know that judicial comment about something like privacy will be that much more persuasive if it was part of a winning judgment. That is why the Campbell case is so important. For the first time, a public figure has been awarded damages by a High Court judge after a full trial in a case that considered the significance of the right to a private life under Article 8 of the Human Rights Act (HRA) 1998.

Lord Wakeham, the former head of the Press Complaints Commission, acknowledged in a speech in January that the privacy cases since the HRA came into force in October 2000 have either concerned injunctions or settlements reached outside court. As a consequence, he said, there was no such animal as a law of privacy.

And Mr Justice Morland, in Campbell versus The Mirror, may have said very little about a public figure's right to privacy – indeed, Ms Campbell did not even bring her claim against the paper solely on grounds of privacy – but there is no doubt that the hundred-odd words he did utter on the subject will be used as a bridgehead to launch an attack on Fleet Street.

This is the telling paragraph: "Although many aspects of the private lives of celebrities and public figures will inevitably enter the public domain, in my judgement it does not follow that, even with the self-publicists, every aspect and detail of their private lives are legitimate quarry for the journalist. They are entitled to some space of privacy."

As many lawyers and editors have noted, it followed many thousands of words in support of The Mirror's decision to print its story about Ms Campbell's drug addiction. "Clearly, in my judgement, said Mr Justice Morland, "the public had a need to know that Ms Campbell had been misleading the public by her denials of drug addiction, and balanced and positive journalism demanded that the public be told that she was receiving therapy for her drug addiction. Clearly, The Mirror was fully entitled to put the record straight and publish that her denials of drug addiction were deliberately misleading."

Under the doctrine of stare decisis, the principle that courts must follow each other's judgments, the Campbell case has set a powerful precedent. Lawyers will use it in combination with Lord Woolf's ruling in the Gary Flitcroft case, the Premier League footballer named on Saturday, which laid down the principle that breach of confidence and Article 8 could sustain a right-of-privacy claim.

They will also build upon other cases since October 2000 that have looked at the issue. Just three months after that legislation was implemented, Michael Douglas and Catherine Zeta Jones took Hello! magazine to court over the publication of unauthorised wedding photos. The magazine ran pictures of the couple's wedding in New York three days before its rival, OK!, with which the stars had struck a £1m deal for exclusive coverage.

Although there was no full trial on the issue, the Court of Appeal said that the couple were likely to succeed at trial in claiming a breach of privacy by Hello!. Lord Justice Sedley said that the law had to protect those "who find themselves subjected to an unwarranted intrusion into their lives." The judges also made it clear that even where celebrities struck deals to publicise themselves, they could claim privacy over those deals.

But the Campbell case also holds real dangers for investigative journalism. Mark Stephens, senior media lawyer at Finers Stephens Innocent, says: "The court's ruling is that you can satisfy the public interest by telling of the fact, but you don't have to give the intimate details. So the Sunday tabloids will still report that a footballer has had adulterous affairs, but they will leave out many of the details. This is part and parcel of where the court is drawing the line."

This places editors in an impossible position. How can they be expected to judge what facts will show "unwarranted intrusion into the claimant's right of privacy"? If a public figure as unsympathetic as Naomi Campbell can win her claim for privacy while lying in court, where does this leave stories about politicians where there is an even greater public interest?

The Campbell case has also shown that a public figure who can rely on the Data Protection Act has an almost cast-iron case of breach of privacy. Mr Justice Morland awarded a substantial part of the £3,500 damages for breach of the data- protection legislation. The judge said that the information as to the nature of, and details of, the therapy that Campbell was receiving, including the photographs with captions, was clearly related to her physical or mental health or condition and was therefore "sensitive personal data".

For those politicians who have resisted the temptation and pressure to introduce a statutory privacy law, the Campbell case can be seen as a clear vindication of that policy. Why try to legislate in such a politically volatile area when the judiciary is prepared to do the job for you?

The next important test for the law of privacy must take place in the House of Lords. Last week, the Court of Appeal denied the Law Lords an early opportunity to flex their judicial muscles on the issue when it refused Gary Flitcroft's application to extend his anonymity.

The Campbell case looks certain to be heard by the Court of Appeal and it may even make its way to the House of Lords. But any final determination on these messy facts may not necessarily settle the question of privacy.

A better case would be a claim by a politician such as Lord Irvine, that stories about his son's drug problems were an invasion of his family's privacy that did not serve the public interest.

The issues in this case have similarities to those of Ms Campbell's, but would also balance the right of privacy against the rights of the press to investigate the private lives of politicians. The question, therefore, is whether the Lord Chancellor, a senior member of the Labour government, is prepared to risk his reputation by trailblazing a new law of privacy.