Mgn Limited v. the United Kingdom: Naomi Campbell v. the Tabloid Press

Mgn Limited v. the United Kingdom concerned several articles published in 2001 in the tabloid Mirror (now Daily Mirror), revealing that supermodel Naomi Campbell was attending Narcotics Anonymous (NA) meetings in an attempt to treat her drug addiction. The articles were accompanied by several photographs, including one in which Ms. Campbell was seen standing in the street in front of a building as the central figure in a small group, dressed in jeans and wearing a baseball cap. Reportedly having just attended an NA meeting, she was being embraced by two people whose faces had been masked on the photograph. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car. Ms. Campbell brought proceeding against the Mirror, claiming a breach of confidentiality.

She won in front of the High Court, but its decision was unanimously reversed by the Court of Appeal. Ms. Campbell consequently brought an appeal in front of the House of Lords. The House of Lords was divided on the issue. It eventually ruled in favour of Ms. Campbell in a 3-2 judgment. All Judges essentially agreed that the publication of Ms. Campbell’s attendance of NA meetings was in the public interest, since she had previously denied taking drugs. The public thus had a right to be informed of the fact that it had been misled by Ms. Campbell. However, the majority of the House of Lords ruled that the publication of the additional information, including the photographs taken of Ms. Campbell leaving NA meetings, was not justified and had breached her privacy rights.

Since it had lost the case, the Mirror had to pay Ms. Campbell’s legal costs, including the success fees owed to Ms. Campbell’s solicitors and counsel (which for the House of Lords appeal amounted to GBP 365,000). The Mirror instituted proceedings, claiming that the imposition of such high success fees violated its freedom of expression, creating a “chilling effect” on speech. The domestic authorities found against the tabloid.

The complaint of the Mirror at the European Court of Human Rights concerned two elements. The applicant firstly complained about its conviction for breach of confidence. Its second complaint concerned the disproportionality of the success fees it had to pay. Although the second part definitely merits attention – the Court found a violation of art. 10 ECHR on that count – I will focus on the first part of the judgment here, in which the Court held that art. 10 had not been breached.

Freedom of expression versus right to respect for private life

Mgn Limited is similar to an earlier – and famous – case of the ECtHR: Von Hannover v. Germany (App. No. 59320/00, 24 June 2004), concerning the publication in a German tabloid of photographs of Princess Caroline of Monaco engaged in private activities such as leaving a restaurant and playing sports. However, the case is also crucially different. Ms. Campbell – unlike Ms. Von Hannover – won the domestic proceedings. The case was thus brought before the ECtHR by the tabloid, under article 10 ECHR, and not by the public figure under art. 8. This creates interesting opportunities for comparison between both cases, having been brought to the ECtHR from different angles. In that respect it is intriguing to note how the Court awarded a broad margin of appreciation to the domestic authorities in Mgn Limited, while it merely accorded a certain margin of appreciation in Von Hannover. It is unclear to me where the difference lies between both cases that would explain why the former merited a broader margin of appreciation than the latter (assuming that there actually exists a difference between a broad margin of appreciation and a certain margin of appreciation). Interestingly, the determination of the margin of appreciation is derived from different principles in both cases. In Von Hannover the Court connected it to the muddy boundary between the State’s positive and negative obligations under article 8: “in both contexts the State enjoys a certain margin of appreciation”. In Mgn Limited, on the other hand, the Court refers to Chassagnou v. France to determine that in cases of conflicts between Convention rights “Contracting States must have a broad margin of appreciation … since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention.” The difference between both cases as to the determination of the margin of appreciation may thus be the result of the application of different principles.

I would submit, however, that another possibility exists as well. In Von Hannover, the Court was concerned with finding in favour of the applicant (Princess Caroline of Monaco). It carefully reasoned why the judgment of the German Constitutional Court had not struck a fair balance between Ms. Von Hannover’s right to respect for her private life and the tabloid’s right to freedom of expression (or the public’s right to be informed). In Mgn Limited, on the other hand, the Court was arguably concerned with upholding its Von Hannover jurisprudence. If it would have held in favour of the applicant tabloid, its judgment might be perceived as going against Von Hannover. The easiest way for the Court to stay in line with its earlier jurisprudence on photographs of public figures enjoying their private lives was to find ‘in favour of’ Ms. Campbell in Mgn Limited by confirming the judgment of the House of Lords, which is exactly what the Court did. It did so by awarding the domestic authorities a broad margin of appreciation and then reiterating the House of Lords’ reasons for finding against the Mirror.[1] Although the above involves quite a bit of speculation on my part, it does offer a possible alternative explanation for the divergence between the size of the margin of appreciation awarded in Von Hannover and Mgn Limited: awarding a broad margin of appreciation assisted the Court in keeping Mgn Limited in line with Von Hannover.[2]

A second element worth discussing is the near total absence in Mgn Limited of any arguments relating to the symbiotic relationship between celebrities and the tabloid press. Baroness Hale of Richmond of the House of Lords did briefly engage with this issue, when she characterised the case as follows in the domestic proceedings: “[p]ut crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other” Dissenting Judge at the ECtHR on the privacy part of the judgment, Judge David Thór Björgvinsson, also referred to this dependent relationship, when he stated that Ms. Campbell has a “direct interest in projecting a certain image of herself in the mind of the general public in order to exploit that image to promote her professional ventures and interests.” In my opinion, it is crucial to take these elements into account in cases such as the current one. The tabloid press primarily pursues a commercial and financial aim when it publishes photographs of celebrities: to sell as many copies as possible to curious readers. However, also the celebrities in question often pursue a commercial and financial aim. Through exposure in the tabloid press they increase their reputation and fame to sell more records, get better contracts, etc. In this respect, an example may illustrate the dependence of celebrities on the tabloid press. On 19 January this year, the day after the Court delivered its judgment in Mgn Limited, US-based hip hop star Nicki Minaj arrived at Heathrow airport and was quickly surrounded by tons of fans and paparazzi.[3] However, they were there only because Ms. Minaj had twittered her time of arrival beforehand, leading to speculation – that I personally find convincing – that she did so to attract attention to herself to increase her popularity in the UK (her debut album had failed to reach higher than 34 on the UK album charts during launch week)[4]. In a similar vein, Ms. Campbell has no doubt benefited in the past from exposure in the tabloid press (not only when she was a model, but also for instance when launching her  singing, writing and acting career). Moreover, were Ms. Campbell’s legal actions in the Mirror case not at least partly led by a desire to protect her professional reputation, to prevent any further detriment to her image that would bring her negative commercial consequences? Is that not what partly motivated her to deny taking drugs in the first place?

Naturally, the symbiotic relationship between celebrities and the tabloid press need not necessarily have an impact in cases involving publication of information that the celebrity considers private and confidential. People cannot be held to have thrown their right to respect for their private life through the window, simply by becoming a celebrity. But their relationship with the tabloid press at least merits attention. I for one would expect to see it reflected more clearly in judgments relating to the conflict between the right to freedom of expression of the tabloid press and the right to respect for private life of celebrities.