MGN Ltd v. United Kingdom
Excessive Costs Threaten Media Freedom
Naomi Campbell sued The Mirror for libel and was awarded £3,500 in damages (approx. $7,000). The newspaper had to pay her legal costs, including a "success fee" uplift, which in total amounted to nearly £1.1 million (approx. $2 million). Such massive costs have a chilling effect on NGOs and small publishers which discourages them from publishing important stories. (Keywords: NGOs - Defamation - Costs)
In 2001, The Mirror published an article about Naomi Campbell’s drug addiction, including photographs of her leaving a meeting of Narcotics Anonymous that were secretly taken. Campbell brought an action against the newspaper for a violation of her common law right to privacy and a breach of her Article 8 privacy rights under the European Convention on Human Rights.
The domestic proceedings lasted several years. Campbell won at first instance, but that ruling was overturned by a unanimous ruling of the Court of Appeal. Campbell then appealed to the House of Lords, which, on May 6, 2004, allowed the appeal and restored the orders made in the first instance judgment.
Campbell was awarded £3,500 in damages. In addition, the newspaper was ordered to pay Campbell’s legal costs, which totaled £1,086,295.47. This included a so-called "success-fee" of £279,981.35 for the proceedings before the House of Lords, which had been undertaken by Campbell’s lawyers under a conditional fee agreement. The proceedings at first instance and before the Court of Appeal had been undertaken on the basis of an ordinary retainer.
The newspaper appealed to the House of Lords claiming that the success fee, which nearly doubled Campbell’s legal costs before the Lords, was disproportionate and so breached its right to freedom of expression.
This application was dismissed in October 2005. The judges found that the "success fee" was an integral part of the conditional fee agreement mechanism, which had been introduced by the government to provide access to justice for people who could not otherwise afford to sue.
The newspaper appealed to the European Court of Human Rights.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative filed a third party brief together with Human Rights Watch, Media Legal Defence Initiative, Global Witness, Index on Censorship, and English PEN which highlighted the effect of the conditional fee arrangement (CFA) system on small newspapers and nongovernmental organizations.
Chilling Effect. By reference to specific examples, the brief highlighted that NGOs and small publications consider being sued for libel in the UK as the most serious legal threat they face. Libel tourism—whereby foreigners can sue in the UK so long as a publication has been downloaded from the internet or otherwise distributed in the UK—means that no one is immune from this fear. Individuals with no money can commence proceedings which essentially blackmail the NGO into settlement.
Costs. The brief summarized a report prepared by the University of Oxford that compares the cost of libel proceedings across the whole of Europe and concludes that the costs in UK courts are 140 times more than the average of other countries, excluding Ireland (where costs average 25 percent of costs in the UK).
Finding for the Daily Mirror, the European Court held that the entire costs scheme in England and Wales, due to the “depth and nature of the flaws” inherent in it, runs afoul of Article 10 of the European Convention. The court highlighted the findings of independent British inquiries—as well as the arguments of the Justice Initiative and its co-amici—that the “bizarre and expensive” costs scheme has generated pernicious “ransom” effects that force publishers to settle cases or withhold stories on matters of clear public interest, simply because of the threat of exorbitant legal bills.
The ruling was immediately hailed by local media and free expression groups. A spokesperson for the British Ministry of Justice noted that the government is preparing proposals that would seek “to prevent the situation in which, regardless of the merits of their case, defendants are forced to settle for fear of prohibitive costs.”
On the privacy question itself, a six-judge majority of the European Court’s seven-judge panel sided with Campbell and the House of Lords majority, finding no violation of Article 10 on that count. The ruling echoed recent judgments of the court that have upheld the privacy and image rights of celebrities against tabloid coverage. However, the lone dissenter, Judge Thor Bjorgvinsson of Iceland, argued forcefully that the majority had failed to apply the strict scrutiny that its case law required in resolving conflicts between privacy and free speech rights.
Judgment issued by the ECtHR.
The Justice Initiative and co-interveners submit written comments to the ECtHR.
The court grants leave to the Justice Initiative and five other NGOs to submit a third-party intervention.
MGN Limited files a second application to the Strasbourg Court with regard to the excessive costs that they are ordered to pay.
MGN Limited files application to the Strasbourg Court regarding the definition of the right to privacy.
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