Campbell’s Scoop

Tom Bennett and I, along with the regular editors (Eric Barendt, Rachael Craufurd Smith and Tom Gibbons) have put together a special issue of the Journal of Media Law (volume 7, issue 2) arising out of the workshop we hosted at Newcastle Law School on the Campbell Legacy and broader issues of privacy law in the UK and Commonwealth. The original workshop (discussed here) was a ‘ten years on’ discussion of the decision of the House of Lords in Campbell v MGN [2004] UKHL 22. Papers in the issue come from Nicole Moreham, Jacob Rowbottom, Rebecca Moosavian, Paul Wragg, Eric Descheemaeker, and my co-editor Tom. We also wrote a short editorial, which appears below.

Introduction: The Campbell Legacy (2015) 7 JML 152

The early years of the 21st century have seen a number of significant developments in the law that have impacted upon the media. The impetus for many of these was the enactment of the Human Rights Act 1998 and perhaps the most dramatic was the recognition by the House of Lords in Campbell v Mirror Group Newspapers Ltd of a cause of action for ‘misuse of private information’ (MPI). This case is rightly regarded as seminal. For, in recognising a head of liability apt to protect against the wrongful publication of private information, the English judiciary took a step towards fulfilling Lord Irvine’s pre-HRA prophecy that English judges were ‘pen-poised’ to develop the right to privacy in domestic law.

The decision of the House of Lords in Campbell has been followed by a decade (or so) of cases and discussion on the shape and purpose of privacy law in England and Wales. The judicial recognition of the MPI cause of action has had a significant impact on the media. Moreover, the decision and its subsequent refinement have formed part of a transnational conversation on privacy, reputation, celebrity, information, and speech, with many other legal orders continuing to grapple with common law and statutory approaches to privacy. Courts in Canada and New Zealand have, whilst developing their own privacy torts, given substantial consideration to the Campbell model. Furthermore, the Australian Law Reform Commission recently recommended the adoption of a ‘misuse of private information’ tort, taking its preferred nomenclature directly from Campbell. Clearly, then, Campbell’s legacy – whatever else it may be – courts global attention.

This ‘legacy’ was the subject of a one-day workshop held at Newcastle University on 23 April 2015, convened by the guest editors of this issue. With support from the Journal of Media Law, Schillings, and the Newcastle University Conference Fund, we were joined by speakers and participants from universities and legal practice, spanning England, Wales and Scotland. In addition, we were particularly pleased to welcome Dr. Nicole Moreham from the Victoria University of Wellington (New Zealand), who gave the closing keynote address.

This special issue of the Journal of Media Law brings together a selection of papers first presented at the workshop, and subsequently revised by the authors. The contributors address the Campbell legacy from a range of perspectives including tort law, human rights, and comparative law; they discuss broader themes of power, metaphor, consistency, and technological change.

Nicole Moreham, who has written extensively on post-Campbell developments, focuses her attention on one of the most recent MPI decisions: Gulati v MGN in the High Court. Concentrating on the treatment of ‘intrusion’ in New Zealand and in Canada (Ontario), and the evolution of doctrine in England and Wales, she concludes that the decision in Gulati is a new and welcome extension of privacy law in this jurisdiction.

Like a number of contributors to this issue, Jacob Rowbottom situates Campbell in the long history of English privacy law. Doing so allows him to highlight the interaction between the development of the law on MPI and broader concerns on the power and influence of the mass media. However, with cultural, economic and technological factors in play, the concept of media itself is under strain; Rowbottom asks whether alternative approaches to what was promulgated in Campbell might be more appropriate in certain cases – especially concerning the use of the Internet.

The decision in Campbell is replete with provocative and complex terms such as ‘balance’. Rebecca Moosavian’s concern is with the poorly-understood significance of metaphors within legal discourses. She traces the use of the ‘balance’ metaphor in Campbell and subsequent cases (with particular regard to articles 8 and 10 ECHR), arguing that it promotes acceptance of decisions by alluding to justice and appearing certain and calculable.

Like Moosavian, Paul Wragg focuses on the ‘ultimate balancing exercise’ undertaken at the second stage of Campbell’s methodology. Wragg presents a more sceptical response than Moosavian, however, offering evidence that the courts have failed properly to engage in ‘balancing’ at all. He contends that, on many occasions, courts have adopted a substantially blunter instrument (a ‘zoning’ approach) in their efforts to decide between the interests of claimants and defendants in MPI.

Thomas Bennett’s essay considers one way in which cases subsequent to Campbell have expanded the law more broadly than might have been expected, given the restrictive undertones of the pre-Campbell decision in Wainwright v Home Office. Focusing on the issue of third parties’ interests in MPI cases and the manner in which the common law develops (‘incrementalism’), Bennett finds cause to be critical of Wainwright for what he sees as a short-sighted and unnecessary insistence upon leaving the law to develop in such a piecemeal fashion.

Eric Descheemaeker’s article, like Bennett’s, concerns Campbell‘s place in the field within which MPI is most often thought to sit – tort law. Focusing on the recent case of Gulati (also discussed by Moreham), Descheemaeker brings to the fore the question of where ‘harm’ lies in MPI cases. This, he observes, is an issue of high significance within tort law generally, and the failure of the courts adequately to theorize it in MPI cases leads to conceptual incoherence.

A number of the articles, then, strike a distinctly critical note. Despite its significance, Campbell is readily identified as a doctrine with imperfections. The contributors to this volume offer up their criticisms regarding doctrinal coherence, the protection of various rights, and the quality of judicial decision-making. The initial decision, while not entirely unexpected, left us with an inchoate doctrine that, in the ten years or so since, the courts have begun to develop further. Each of the authors here, in their own way, cautions against complacency. Clearly, the accumulated caselaw and commentary of the post-Campbell decade point to a clearer notion of what privacy law in England and Wales should look like. Some measure of redress for infringements of privacy is here to stay. Nonetheless, both the doctrinal imperfections and the underexplored alternatives from elsewhere should be given greater attention in Campbell’s second decade.

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