Mosley loses privacy case in Strasbourg

10 May 2011 by Rosalind English

The Strasbourg Court has ruled that the United Kingdom has not breached the right to privacy by failing to have in place a “pre-notification” requirement that would have alerted Max Mosley to the News of the World’s impending publication of covertly filmed footage – read judgment. 

Adam Wagner’s prediction is bang to rights; although in this particular case the Court agreed that the newspaper had “flagrantly” violated Max Mosley’s right to privacy, it has refrained from ruling that UK law fell short of adequate protection of Article 8.   “Particular care” had to be taken when examining constraints which might operate as a form of censorship prior to publication and generally have a chilling effect on journalism.

A new attitude of diffidence characterises this judgment in that the Court expressly refrains from considering the application of Convention rights to the facts of this case, since the UK Court had already decided on it. This suggests that Strasbourg is beginning to take on board criticisms that it is tending to arrogate to itself the role of supra-national court of appeal. There was no reconsideration therefore of the High Court’s assessment of the newspaper’s public interest defence nor of the balancing act that the judge had conducted between the right to privacy and the right to freedom of expression. The focus of this ruling was on the question of  whether a legally binding pre-notification rule was required.

The following summary of the facts is based on the Court’s press release:

On 30 March 2008, the News of the World published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”.  Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities. An edited extract of the highly intrusive video as well as still images were also published on the newspaper’s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper.

The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies.

On 4 April 2008, the applicant brought legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage.

On 6 April 2008, a second series of articles on the applicant’s sexual activities was published in the News of the World.

High Court ruling

On 9 April 2008 Eady J refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet. He concluded that the material was so widely accessible that an order in the terms sought would have made very little practical difference:

If someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute.

As to the privacy point, Eady J did not allow the respondents to rely on a public interest defence in relation to the alleged “Nazi” associations.

The journalist and editor may well have been convinced that there was a Nazi element – not least because that is what they wanted to believe. Indeed, they needed to believe this in order to forge the somewhat tenuous link between the Claimant and his father’s notorious activities more than half a century ago and, secondly, to construct an arguable public interest defence.

The judge therefore found that there was no public interest justification for the newspaper’s breach of the applicant’s right to privacy. But he declined to award exemplary damages, limiting the award to £60,000 in compensation, whilst acknowledging that the sum would not constitute adequate redress.

Strasbourg petition

Mosley’s complaints to the Strasbourg Court attached both to the injunction and privacy limbs of the proceedings. He contended that the United Kingdom had violated its positive obligations under Article 8 of the Convention by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of the material.

He further argued under Article 13 that there was no effective domestic remedy open to him. Although the court found a serious breach of his right to respect for privacy and he was awarded damages, this award was not able to restore his privacy to him. He contended that only the possibility to seek an interim injunction prior to publication could constitute an effective remedy in his case. The questions for the Court were formulated thus:

1) Having regard to the award of GBP 60,000, could the applicant still claim to be a victim in respect of his Article 8 complaint?

2) Has there been a failure to protect the applicant’s right to respect for his private life, contrary to Article 8 of the Convention? In particular:

(a) Did the Government have a positive obligation to protect the applicant’s privacy by providing for a legal duty (a “notification requirement”) on the News of the World to warn him in advance of publication in order to allow him to seek an interim injunction?

(b) Would such a positive obligation and corresponding duty on newspapers and other media strike the correct balance between the interests protected under Article 8 and freedom of expression as guaranteed by Article 10 of the Convention?

(3) Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?

The judgment

In the Court’s view the applicant’s complaint under Article 13 was merely a reformulation of his privacy complaint so the Court analysed his case solely under Article 8.

(1) Victim status

The Court agreed with the applicant that no sum of money awarded after disclosure of the material which had caused him humiliation could be a remedy for his specific complaint that no legal requirement existed in the UK obliging the media to give advance warning to a person of a publication related to their private life.

Consequently, Mosley could claim to still be a victim of a Convention violation.

(2) Balance between privacy and freedom of expression

The Court noted that the UK courts had found no Nazi element in Mr Mosley’s sexual activities and had therefore concluded that there had been no public interest in, and therefore justification for, the publication of the articles and images. The publications in question had therefore resulted in a flagrant invasion of Mr Mosley’s private life, that could not be justified by a specious claims to public interest.

Given that Mr Mosley had achieved a finding in his favour before the domestic court, the Court’s own assessment concerned the balancing act to be conducted between the right to privacy and the right to freedom of expression not in the circumstances of the applicant’s particular case but in relation to the UK legal system.

(3) The role of a legally binding pre-notification rule

States enjoyed a certain margin of appreciation in respect of the measures they put in place to protect people’s right to private life.  In the United Kingdom, the right to private life had been protected with a number of measures: there was a system of self-regulation of the press; people could claim damages in civil court proceedings; and, if individuals were aware of an intended publication touching upon their private life, they could seek an interim injunction preventing publication of the material.

The Court had not been referred to a single jurisdiction in which a pre-notification requirement as such existed, nor was it aware of any international legal texts requiring States to adopt such a requirement.

Whilst the concept of “private life” was sufficiently well understood for newspapers and reporters to be able to identify when a publication could infringe the right to respect for private life, any pre-notification obligation would have to allow for an exception if public interest was at stake. Thus, a newspaper could opt not to notify an individual if it believed that it could subsequently defend its decision on the basis of the public interest in the information published – an option open to the News of the World in this case, since they had believed that the sexual activities they were disclosing had Nazi overtones, and hence were of public interest.

Alternatively, a newspaper could choose, in any future case to which a pre-notification requirement was applied, to run the same risk and decline to notify, preferring instead to pay a subsequent fine. The Court emphasised that any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it.

Although the dissemination of information about the private lives of those in the public eye was generally for the purposes of entertainment rather than education, it undoubtedly benefitted from the protection of Article 10. The Article 10 protection afforded to publications might cede to the requirements of Article 8 where the information was of a private and intimate nature and there was no public interest in its dissemination.

However, looking beyond the facts of Mr Mosley’s case, and having regard to the chilling effect to which a pre-notification requirement risked giving rise, to the doubts about its effectiveness and to the wide margin of appreciation afforded to the UK in that area, the Court concluded that Article 8 did not require a legally binding pre-notification requirement. Therefore, its absence in UK law had not breached Article 8.

A full analysis of this case will follow shortly.

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