Supermodel’s privacy victory in England would have ended differently in the U.S.

From the Spring 2002 issue of The News Media & The Law, page 30.

A supermodel leaves a building after attending a Narcotics Anonymous meeting. She steps into full view of any passerby on a public street. A photographer with a long lens snaps a picture, which a newspaper publishes with a story detailing the model’s drug treatment.

Is this an invasion of privacy?

Probably not in the United States. But in London, a judge on March 27 ordered The Mirror newspaper to pay Naomi Campbell £3,500 — roughly $5,000 — in a ruling that was based on breach of confidence but which recognized that even celebrities are “entitled to some space of privacy.” The newspaper will appeal.

Campbell reportedly told the court she felt “shocked, angry, betrayed and violated” by The Mirror‘s coverage.

The Mirror‘s report that Campbell was a drug addict was acceptable, especially since Campbell had misled the public by denying her addiction, ruled Justice Sir Michael Morland of the High Court, Queen’s Bench Division in London.

But the newspaper overstepped when it published the photo of Campbell leaving the Narcotics Anonymous meeting and included details of her drug addiction in its articles in February 2001, the judge ruled.

Those details, including the number of times a day Campbell attended Narcotics Anonymous meetings and the location of those meetings, bore the “mark and badge of confidentiality” and were “sensitive personal data” that violated England’s Data Protection Act of 1998, the judge ruled.

Morland grounded his ruling in two uniquely European laws: the Data Protection Act and the Human Rights Act of 2000. The Data Protection Act requires that personal data be used only for specified and lawful purposes. The Human Rights Act, a law based on the European Convention on Human Rights, establishes a right of privacy to everyone but also recognizes the right to freedom of expression. Morland had to balance Campbell’s privacy rights with The Mirror‘s right to freedom of expression.

If the case had been tried in the United States, Campbell probably would have lost. American courts grant celebrities a lower expectation of privacy than non-celebrities, which makes proving an invasion of privacy claim difficult.

“Public figures here have much less protection regarding details about their private lives, and Naomi Campbell would certainly be considered a public figure,” said Robert D. Lystad, a media attorney with Baker & Hostetler LLP in Washington, D.C.

In addition, U.S. court rulings allow photographers to take pictures of people from a public place as long as the subject is also in a public place, Lystad said.

The American press also has the added protection of the “newsworthiness” argument, said Lee Levine, a media attorney with Levine Sullivan & Koch LLP in Washington, D.C. Newspapers usually can successfully argue that unflattering photographs of celebrities are newsworthy and not an invasion of privacy.

“American courts have traditionally been very deferential to editorial judgment on what’s newsworthy and what’s not,” Levine said.

But photographers do not have total freedom to take pictures of celebrities in the United States. Photographers cannot stalk or harass a public figure or go “beyond the reasonable bounds of news gathering,” as the U.S. Court of Appeals for the Second Circuit ruled in 1973. (Galella v. Onassis)

If a photographer regularly hounds a public personality to the point of impeding the celebrity’s movements, the photographer can be held liable, Lystad said.

Reporters and photographers also should be aware of anti-paparazzi laws that create liability for newsgathering that involves trespass or harassment. California enacted an anti-paparazzi law in 1998. The law, Civil Code section 1708.8, allows a civil lawsuit for “constructive” invasion of privacy against anyone who uses a “visual or auditory enhancing device” — such as a long-lens camera or boom microphone — to capture a visual image or sound recording, when the invasion is “offensive” to a reasonable person and the recording could not have been obtained without trespassing unless the “enhancing device” was used. (Campbell v. Mirror Group Newspapers) — MD