Example 5: The right to privacy in the context of drug treatment
Project Type: Litigation — MGN Limited v. The United Kingdom, no. 39401/04, ECtHR (January 18, 2011).
This is an example of an individual person that filed a lawsuit to protect her privacy.
The British tabloid The Daily Mirror (formerly known as the Mirror) published several articles in 2001 showing supermodel Naomi Campbell attending Narcotics Anonymous (NA) meetings. Ms. Campbell wrote to the paper stating that the article was a breach of her privacy and asked it to publish no further articles regarding her attending NA meetings. The tabloid continued to publish articles regarding Ms. Campbell attending NA meetings and once wrote, “After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy.”
The British House of Lords found MGN Limited, publisher of the Mirror, guilty of the tort of failing to maintain confidence by publishing an article depicting supermodel Naomi Campbell attending a Narcotics Anonymous meeting. MGN Limited appealed to the European Court of Human Rights (“ECtHR”) on the theory that the verdict violated its article 10 rights under the European Convention of Human Rights (“ECHR”) (relating to freedom of expression).
ECHR Article 8: Everyone has the right to respect for private and family life, his home and his correspondence.
Arguments and Holdings
Freedom of Expression
Ms. Campbell acknowledged that she could not complain about the reports that she took illegal drugs, since she had previously made public claims that she did take illegal drugs. The subject of her complaint involved those “additional” materials published by the Mirror—that is, the reports of her attending NA meetings. Article 10 of the European Convention on Human Rights provides: ”Everyone has the right to freedom of expression” but also provides that a state party may limit freedom of expression when “prescribed by law” and when it is “necessary in a democratic society.”
Since it was not disputed that a finding of a breach of confidence against the applicant amounted to an infringement on its right to freedom of expression, the issue for the court to decide was whether the restriction was necessary in a democratic society. MGN admitted that publishing the facts of Ms. Campbell’s drug use and recovery efforts were sufficient to rebut her earlier statements regarding her history of drug use. The Mirror did not have to publish the additional materials regarding Ms. Campbell attending NA meetings to ensure the credibility of the story regarding her prior drug use. Moreover, the reports of the additional material were harmful to Ms. Campbell’s continued treatment and caused a setback in her recovery efforts. Finally, the Court noted that it needed “strong reasons,” which were not present in this case, to substitute its judgment for that of a national court. Therefore, since publishing the additional material was not necessary in a democratic society and since it was proscribed by law, the Court found no violation of the newspaper’s right to freedom of expression under Article 10 of the European Convention on Human Rights.
Right to privacy
In a factual similar case (Von Hannover v. Germany, App. No. 59320/00 [June 24, 2004]), the European Court of Human Rights found that the German Constitutional Court violated Article 8 of the European Convention on Human Rights (providing the right to respect for private and family life) by denying a public figure privacy claims against a publisher. In MGM Limited, the European Court of Human Rights held that the House of Lords did not violate Article 10 of the European Convention on Human Rights (providing the right to freedom of speech) when it found that the tabloid had acted in breach of confidence by publishing the articles on Ms. Campbell.
Commentary and Analysis
Articles 8 and 10 are in natural tension with each other. States parties must strike an appropriate balance between the two. In determining whether the state party has succeeded in striking the appropriate balance, a court will balance the public interest that article 10, freedom of expression, is intended to protect with the individual interest that art. 8, respect for private and family life, is intended to protect.
The case demonstrates the right of drug users to privacy rights within the context of drug treatment. Narcotics Anonymous cannot operate if members cannot maintain anonymity. This case helps establish that the right to freedom of expression must be balanced with the right for respect for private and family life. MGN Limited and other members of the press in Europe do not have an unbridled right to out an individual as a Narcotics Anonymous member.