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Campbell, costs and privacy

January 21, 2011 Leave a comment

The Naomi Campbell case is back in the news following a decision by the European Court of Human Rights that the costs regime for the privacy case violated Article 10 (protecting freedom of expression). The cost issue concerned conditional fee agreements (CFAs) in which lawyers claim a success fee if they win a case (sometimes the success fee doubles that lawyer’s bill). The losing party then has to pay those legal fees. While CFAs were introduced for a good purpose, to widen access to justice, it can have harsh effects on some defendants that face very hefty legal bills. In privacy and defamation cases, there is an additional problem that the legal bills may have a chilling effect on the press.

None of this is new and has been noted by a number of judicial decisions and a number of government reviews. What is striking about the latest Campbell case is that the UK government was defending a costs system which it has openly acknowledged to be seriously flawed in a series of consultations and reviews. At paragraph 182 of the decision, the government argued that there is no inconsistency in its position – they accepted there are problems with success fees, but that these problems do not amount to violation of Article 10 and are within the margin of appreciation. That said, the domestic consultations and reviews planted the seed for the Strasbourg Court’s conclusion. The Court relied heavily on the Jackson Review, the Ministry of Justice consultations and the Culture Media and Sport Committee report to find that the position on success fees taken in Campbell No.2 (the domestic decision on the costs) is no longer sustainable. The Court therefore found the costs regime violated Article 10.

The case is not just about the costs issue. The Mirror first argued that the initial finding of a breach of confidence/misuse of private information violated Article 10. The domestic court had found that the Mirror was entitled to publish the fact of her drug use, but not the additional information on the treatment she was receiving or photographs of her leaving the treatment centre. The gist of the newspaper’s argument was that publication of the photos and additional information should fall within the editor’s discretion to illustrate the story. Unsurprisingly, the Strasbourg Court rejected this argument. The Court emphasised that editorial discretion is not unlimited and that the state has a wide margin of appreciation in striking the balance between Articles 8 and 10. The Court then endorsed the reasons given by the House of Lords (see para [151]).

The Court said that parts of the House of Lords’ ruling reflected the approach taken by the European Court of Human Rights in Von Hannover. However, the Court did not go on to address or resolve any of the tensions between Campbell and Von Hannover (there are some differences in the formulations taken in the two cases as to what types of information are protected by Article 8).

Finally, Judge David Thor Bjorgvinsson dissented on this point, in particular arguing that the Court should not give a wide margin of appreciation in such cases, and that it should take a ‘strict scrutiny’ approach by making its own assessment of the balance between Articles 8 and 10. He would have found a violation of Article 10 on the liability issue as well as on costs.

The finding of a violation on the costs regime is an important development, but in practice it should lead to the faster implementation of reforms that were already in the pipeline.

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Categories: Media