Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 87
and in what form, material should be published still holds true. This is a vital component of freedom
of expression. It is essential that the courts should not have total, homogenising control over the
style and substance of a journalistic work. The idea of control over information and the way in which
it is presented is, therefore, entrenched in both freedom of expression and privacy.
The majority considered that Campbell’s right to privacy in this case outweighed the Mirror’s right to
freedom of expression, deciding that receiving treatment for drug addiction should attract the same
level of protection as treatment for any medical condition. Further, divulging details of the treatment
had the potential to adversely affect Campbell’s recovery process. The Mirror’s publication of the
details of Campbell’s treatment and particularly the accompanying use of a photograph was held to
be in breach of confidence as the publication of the material infringed her right to privacy. However,
little was said about the DPA element of the claim; the parties had accepted that this claim would
follow the outcome of the main claim.
Quite radically, where it relates to an invasion of privacy, the breach of confidence action was
described by Lord Nicholls as follows: “the essence of the tort is better encapsulated now as the
misuse of private information”. It was also firmly established that individuals involved in disputes with
other individuals or private bodies can utilise the provisions of Articles 8 and 10, just as those
individuals involved in disputes with a public body. This is because the court, as a public body, has
a duty to act compatibly with Convention rights.
Some mention should be made of photographs. There was a division of opinion in Campbell as to
whether a photograph can constitute a more serious invasion of privacy than a verbal description.
The majority of the House of Lords considered that a photograph is capable of such impact: as the
saying goes, a picture can tell a thousand words. The PCC here, however, does not accept that
photographs are innately more intrusive than written material. It considers that it is the nature of the
information, and not the way in which it is conveyed, that should be the focus of the determination
of whether a breach of privacy has occurred 170 .
In 2005, Hello! Magazine appealed against the decision of the High Court in Douglas, as referred to
in Page 82 above. The Court of Appeal had little difficulty in concluding that the unauthorised
wedding photographs portrayed private aspects of the Douglas’ life and fell within the law of
confidentiality, as expanded to cover private information in Campbell. The court determined that the
action for breach of confidence was not a tort but an equitable action. This may seem at odds with
the position taken in Campbell.
Photographs were again singled out for special protection. The court considered that the available
defence of showing that information was in the public domain may not apply to photographs
because each fresh publication and/or additional viewer may cause fresh distress.
The Court of Appeal held that the law of confidence would cover the Douglases commercial interest
in the private information contained in the photographs. The law of confidence would protect the
opportunity to profit from personal confidential information in the same way as it protects the
opportunity to profit from, for example, trade secrets. But the court clarified that the rights in private
or confidential information are not transmissible as property rights. The concept of developing image
170
Press Complaints Commission Annual Review 2005.