UK: Where Is The Law Of Privacy After Mosley?

Last Updated: 3 September 2008
Article by Jonathan Coad (with grateful thanks to Courtney Leffingwell)

Introduction

There has been much crying "foul" in the press concerning the decision of Mr Justice Eady in Mosley v The News of the World. Most newspapers have complained of a "chilling" of freedom of expression, and that the rich and famous will now get up to no good with impunity. Even an ex Archbishop of Canterbury joined in the criticism of Eady J, the UK's leading judge in this field. However, the reaction of the general public has been strikingly different. Over 90% of those members of the public who commented in newspaper blogs, even in the face of concerted Fleet Street propaganda to the contrary, thought that the decision was correct. On the basis of this evidence (politicians please note), the newspaper reading public clearly favour an effective privacy jurisdiction for the Courts, despite being told repeatedly by the press that it is contrary to their interests. But where does this controversial decision in the Mosley case really leave the law of privacy?

The Impact of the Judgment

The Judgment has already had a huge impact in Fleet Street because key editorial decisions on privacy issues, especially where photos and footage are concerned, have had to change as a result. The law of privacy is now firmly embedded in the British legal system, and sexual activity (and in particular photographic images and video footage) cannot be splashed over the tabloids unless there is a clear public interest in doing so. Legally (as under the Press Complaints Commission Code) the burden is on the newspaper to prove this, and as Mr Mosley showed, it is a very difficult obligation to meet. There were, however, a number of key elements of the Mosley Judgment, which neither the News of the World nor its peers have reported, which may have contributed to the judge's decision.

The Failed Application for an Injunction

Shortly after the offending footage was published on the News of the World website on 30 March, Mr Mosley's lawyers made an application for an injunction requiring the newspaper to take it down. It was clear from the Judgment in that application that the judge had considerable sympathy with Mr Mosley. However, he concluded that in the light of the fact that nearly 1.5 million people had already viewed the footage in the 36 hours that it had been up on the News of the World website, the "dam had burst". In those circumstances, the judge reluctantly found that Mr Mosley no longer enjoyed any privacy in the relevant footage and on that basis refused his application for an injunction.

The Judgment in Detail

After a dramatic and hard fought trial, on 24 July Mr Justice Eady gave a Judgment in favour of Mr Mosley, who is the President of the FIA (the governing body for world motor sport and the federation of the world's leading motoring organisations), in his privacy action against the News of the World. He awarded Mr Mosley £60,000 as compensation for what he found to be an unwarranted intrusion into his personal privacy committed by the paper. The offending story and footage had been published both in the paper's print edition and on its website, claiming that Mr Mosley engaged in a Nazi themed S&M orgy with five prostitutes.

One of these women, known only as "Woman E", had secretly filmed the event with the assistance of the News of the World, which later posted edited footage on its website. The headlines accompanying this material included the violent allegations: "F1 boss has sick Nazi orgy with 5 hookers" and "Son of Hitler-loving fascist in sex shame". The paper followed up this story with another on 6 April, for which it attempted to "blackmail", in the words of the judge, two of the women involved in the orgy. This was done by threats that the paper would publish photographs identifying them if they refused requests for exclusive interviews. So much for the sacred principle of anonymity for journalists' sources when it ceases to be convenient to the journalist.

The judge evidently found it incomprehensible that neither the paper's chief reporter (Neville Thurlbeck) nor its editor (Colin Myler) seemed to get the point that a request for interviews with the unidentified women, accompanied by a threat of exposure if that offer was refused, amounted to an unwarranted demand with menaces. He also criticised the paper for using information in this second article which it knew to be inaccurate, such as misquoting "Woman E" as stating that she had known Mr Mosley "for years", when in reality it was only a few months. It is hard not to conclude that activity such as this undermined the claim by the paper to occupy the moral high ground.

Eady J explained that misuse of private information claims involve a now well established two stage approach: (1) Does the claimant have a reasonable expectation of privacy in the information concerned; and if so, (2) Is there any countervailing reason which outweighs that right and justifies the publication of that information? He went on to apply those principles to the unusual facts before him. The European Court of Human Rights jurisprudence states that information about sexual activity between consenting adults on private property engages Article 8 privacy rights, as do secret recordings. In addition, the Court held that the established relationship between the woman informant and Mr Mosley gave rise to a duty of confidence.

The News of the World argued that an S&M orgy with a "Nazi theme" qualified as such abhorrent conduct that it should deprive Mr Mosley of any reasonable expectation of privacy. Certainly those with whom I have spoken who saw the five hours of video footage agree that it was pretty strong stuff. However, the judge found that there was in fact no credible evidence of a Nazi theme from the footage of the event and from the evidence he heard at trial, finding that the information regarding the orgy was inherently private and an "old-fashioned breach of confidence". Therefore, Mr Mosley had a reasonable expectation of privacy in the activity despite the fact that this was a group activity and that he routinely recorded these events.

In examining whether an element of public interest would outweigh Mr Mosley's reasonable expectation of privacy, thus giving rise to the paper's (Article 10) right to publish the information at hand, the judge found that the public interest required that Mr Mosley's privacy be protected. He rejected the proposition by the News of the World that its disclosures were exposing a crime, and stated that even if they were, an infringement of privacy cannot be justified merely on the basis that it exposes some crime.

The judge also based his dismissal of the public interest defence on his finding that there was no actual Nazi theme to the orgy, although it seems from the Judgment that he would have found for Mr Mosley even if there had been a Nazi theme. He concluded that moral judgments by the press alone were no adequate justification for infringements of Article 8 privacy rights, and the nature of sexual activities themselves cannot give rise to a public interest in favour of disclosure.

In seeking to define the boundaries of the public interest defence, the judge laid down the principle that a defendant is not confined in his public interest defence to relying on matters of which it was aware at the time of publication. The defendant's state of mind is not relevant to the public interest defence. Further, although in privacy there is probably no role for a journalist's own opinion on what is in the public interest, the judge does observe that the Courts may be required to give some leeway regarding whether "responsible journalism" was being employed or not.

The judge refused to make exemplary damages available as a remedy for the breach of privacy claim based on the lack of authority on the matter, and the fact that this would be inconsistent with Article 10 (the right to free speech). He awarded compensatory damages at a level which "marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party." According to the judge, these monetary damages should compensate Mr Mosley for his distress, hurt and loss of dignity, and also acknowledge the infringement of a human right, specifically his right to privacy.

Mr Justice Eady's own Summary of his Conclusions

Here – in his own words – are Mr Justice Eady's conclusions at the close of his Judgment:

"232. I decided that the Claimant had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property. I found that there was no evidence that the gathering on 28 March 2008 was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes. Nor was it in fact. I see no genuine basis at all for the suggestion that the participants mocked the victims of the Holocaust.

233. There was bondage, beating, and domination which seem to be typical of S and M behaviour. But there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website — all of this on a massive scale. Of course, I accept that such behaviour is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the Claimant.

234. It is perhaps worth adding that there is nothing "landmark" about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.

235. It is necessary, therefore, to afford an adequate financial remedy for the purpose of acknowledging the infringement and compensating, to some extent, for the injury to feelings, the embarrassment and distress caused. I am not persuaded that it is right to extend the application of exemplary (or punitive) damages into this field or to include an additional element specifically directed towards "deterrence". That does not seem to me to be a legitimate exercise in awarding compensatory damages.

236. It has to be recognized that no amount of damages can fully compensate the Claimant for the damage done. He is hardly exaggerating when he says that his life was ruined. What can be achieved by a monetary award in the circumstances is limited. Any award must be proportionate and avoid the appearance of arbitrariness. I have come to the conclusion that the right award, taking all these considerations into account, is £60,000."

The Informant's Remorse

"Woman E", as she is known by anyone who has picked up a newspaper in the past few weeks, is the dominatrix who agreed to film Mr Mosley partaking in an orgy at the request of the News of the World. In return for filming the event, the News of the World paid her £12,000, significantly less than the £25,000 it promised to her at the outset. The editor said in evidence that the paper liked to renegotiate deals when it was in a position of strength (i.e. when it had been given the material), and blamed the reduction on the "credit crunch". Any of you thinking of selling stories to papers – you have been warned - it is a common tabloid tactic. The paper also misquoted her in statements thereby further incriminating Mr Mosley. Perhaps unsurprisingly, when the full consequences of her actions emerged and the paper's own moral deficiencies became clear, "Woman E" began to regret bitterly the decision to take her story to the News of the World.

Billed as the News of the World's star witness, "Woman E" then failed to testify at the trial because she was "mentally and emotionally unfit" to give evidence, according to Mark Warby QC, appearing for the News of the World. Two of the dominatrices who did testify for Mr Mosley appeared to be delighted by "Woman E"'s absence, which was not the only indication of their contempt toward the woman who betrayed them as well as Mr Mosley. But it appears that "Woman E" lost more than friends, as her subsequent interview with Sky News demonstrated. In explaining how she lost everything as a consequence of her betrayal of Mr Mosley and her fellow dominatrices she stated, "My career, my husband's career he's worked very hard for, he has had an exemplary career since he left school and all that has gone. So the money aspect of it after that was meaningless." "Woman E"'s husband had worked as an MI5 surveillance officer but had resigned following the outbreak of the scandal in order to save the service "any embarrassment". Her decision to betray Mr Mosley to the paper was financially and personally catastrophic.

During her interview, "Woman E" contradicted the evidence that the paper hoped she would give in Court by stating that the orgy featured a "German prison scene", but that "it was never talked about that it was going to be a Nazi theme," She has claimed that the News of the World put a great deal of pressure on her to emphasise such a Nazi theme which she agreed "makes it look really worse". Apparently she had been persuaded by the paper's lawyers to sign a witness statement alleging there was a Nazi theme. Admitting that she was deeply distressed about the situation, "Woman E" said "I can't take back what has, happened, I will never be able to do that. I can only apologise for what has happened, but it is not going to take back all the damage that has been done."

As for her current sentiments toward Mr Mosley, she went on to say she would get on her knees and apologise to him for everything that has happened should she be able to speak to him. The now infamous "Woman E" then added, "I was stupid, naïve certainly, and I wish I had never done it." She is by no means the only newspaper sponsored betrayer of intimate secrets to feel profound remorse at the end of the process, to feel cheated by her sponsor.

Outrage from the Press

"Call This Justice?" the News of the World roared in response to the highly publicised verdict the High Court entered against it. "Freedom Gets a Spanking" and "What Price Morality?" are just two of the irate headlines from The Sun and the Daily Mail respectively, exemplifying how the News of the World's peer group also view the impact of the Mosley Judgment.

The Daily Mail referred to the ruling as "a landmark in allowing highly restrictive privacy legislation to creep in from Europe" and noted that it will be "potentially devastating to the future of free Press in this country." The press appears to be in rare agreement, insisting that the public has a right to be informed about matters of the kind in which Mr Mosley was involved – a view apparently not shared by the public itself. In addition to claiming that the published material in question was "legitimate and lawful" the News of the World's editor himself, Colin Myler, stated that "It is not for the rich and the famous, the powerful and the influential, to dictate the news agenda just because they have the money and the means to gag a free press."

The Sun referred to Mr Justice Eady as a judge representing "power and privilege". Like Mr Myler it seems to have forgotten in making these complaints the immense power – far greater than any individual – that the press itself wields, and the millions it makes annually in profit. The Sun, however, sees his ruling as bringing us closer to a dangerous privacy law that will "provide a cloak of secrecy behind which privileged and powerful people will be able to hide their criminal or immoral activities from the public".

The press sees this as one of a series of Judgments by Mr Justice Eady which are bringing a privacy law in "through the back door", i.e. without the sanction of Parliament. In response, The Sun goes so far as to print that it has no intention of surrendering its right to tell readers what it believes to be in the public interest to print. It even boldly declares that what Mr Justice Eady thinks should be printed in the papers is less important than the public's right to know by stating, "What matters is not what a lofty and privileged judge thinks should be printed in papers." The News of the World was no less belligerent in reply, bawling from its editorial pages that it would not be "gagged" by anyone – including judges and Parliament, thereby reminding us precisely why in decisions such as this, courageous judges such as Mr Justice Eady, applying human rights legislation which has been fully debated in Parliament, are essential if the rights of the individual are to be protected against hugely powerful media corporations.

The suggestion that the Judgment has brought in a privacy law "through the back door" was anticipated by the judge, and (as he makes clear in his Judgment), is plainly wrong. Perhaps unsurprisingly, his clear analysis of the legislative context goes unreported in the newspapers. However, as he says, he is merely giving effect to the will of Parliament: "It is not simply a matter of "unaccountable" judges running amok. Parliament enacted the 1998 statute [the Human Rights Act] which requires these values to be acknowledged and enforced by the courts. In any event, the courts have increasingly taken them into account because of the need to interpret domestic law consistently with the United Kingdom's international obligations. It will be recalled that the United Kingdom Government signed up to the Convention [the European Convention on Human Rights] more than 50 years ago"

The press however clearly sees this Judgment as another stage in the "battle for privacy". The Times in particular observes that, in this contest between an individual's expectation of privacy in the modern world and the importance of a free press in a civilised society, the judge has tipped the scales in favour of privacy over press freedom. The press appears to view these two principles as mutually exclusive, perceiving any Judgment affirming an individual's right to privacy as a serious blow to its own freedom. The Times also observes that a newspaper must make a choice whether or not to be part of a "moralising press" which takes an ethical stand. Following the Mosley Judgment, the press believes that freedom of expression has been curbed by the Court, because, as the judge clearly emphasises, the press cannot justify infringing the human rights of individuals by the unilateral passing of moral judgements.

The "battle", self proclaimed by the press, between an individual's right to privacy and freedom of the press will rage on as the full long term effect of the Mosley Judgment emerges. Commentators have predicted the Judgment from this case has "effectively signalled the end of newspaper investigations into the private lives of public figures such as MPs", as reported by the Telegraph. Papers such as The Sun and the News of the World nonetheless appear belligerently committed to providing the public with the information that it feels they have a "right to know" - regardless of what Eady J has to say on the matter.

Praise from the Public

The outcry from the press would have one believing the public is devastated that it will no longer be able to read about the various sexual exploits of notorious tabloid personalities. On the contrary; in the wake of the Mosley Judgment, and notwithstanding both the selective reporting of the case and the tidal wave of propaganda from the press, the public has overwhelmingly expressed its support for the decision and Mr Mosley's victory over the News of the World.

More than 90% of the comments posted on the national newspapers' websites supported the decision. The majority was less overwhelming on the News of the World's website: this might be explained by self interested editing by the paper or the fact that both critics of the Judgment and supporters of the paper would be most inclined to post their comments on its own site. The general consensus amongst the vast majority of the public who expressed an opinion was that this was an unwarranted intrusion of privacy and that the News of the World, in addition to the press as a whole, is merely getting now what it has deserved for a long time.

Many people disagreed with the outcome of the case merely on the basis that they believe that the award of £60,000 was not a strong enough deterrent for the News of the World and its ilk, and that the damages award should have been substantially higher. These comments indicate that there are those of the public who think the judge was "far too lenient". Several individuals described the Judgment as a triumph for "common sense" and recognises that "what is of interest to the public, is not necessarily in the public interest" as one comment on the Guardian's website reads. A blogger on the Daily Mail website remarks that "In a nutshell, one of the biggest faults in this country at present is the failure of all parties to recognise where 'public' ends and 'private' begins. This is a victory for common sense."

The following comment, also from the Daily Mail's website, captures how many feel about the conduct of the News of the World: "The arrogant News of the World has long thought itself above the law. I fancy it will think twice in future about what it publishes. And I hope plenty of other people whose privacy has been breached now take this miserable rag to the cleaners." The public appears to have no respect for the editorial values of the News of the World, or the red tops as a whole, describing them as "muck-raking", "smut", and "exploitative." One individual commenting on the News of the World's own website issues his own verdict: "My verdict? NOTW is both legally and morally guilty of intrusion of privacy on a private person's life with the sole purpose of financial gain."

The few comments criticising the Judgment offer little or no rationale, merely calling Mr Mosley's behaviour "shocking" or "vile". A few other comments argue that the information in question was in the public interest as a result of Mr Mosley's high profile job with the FIA. In response to these criticisms, other comments from the public draw attention to the lack of connection between Mr Mosley's private sexual preferences and his public life.

Other bloggers note there is no evidence that Mr Mosley's antics have had any influence at all on his ability to do his job effectively. The majority of comments (of which this is an example) emphasise that Mr Mosley's conduct was in no way a matter of public interest: "I have said all along that what the News of the World did was in no way in the 'National Interest.' This was just nasty underhanded tabloid sleaze. I can't say I agree with Mr Mosley's sexual preferences, but they are his personal tastes and his alone. The News of the World should have known this at the outset."

Even those with a strong distaste for Mr Mosley appear to support the Judgment by reference to common decency. For example: "I detest Mr Max Mosley with a passion for what he has done to F1. However, no newspaper or any other body has any right to report what happens when a door is shut and behind the door are all willing adults." Once again, the public appears to feel extremely strongly that the News of the World grossly invaded Mr Mosley's privacy and therefore the judgment was correct. Instead of a blow to freedom of the press, as the papers are suggesting, the public generally sees this Judgment as a much needed check on the press' dubious and prurient practices in their quest for profit.

The public has spoken then ... the privacy of the individual must be protected against tabloid intrusion. Furthermore, the News of the World, and other powerful titles, must be deterred by Judgments such as this one from continuing to encroach on the privacy rights to which everyone is entitled. Mr Justice Eady maintained in his Judgment that there was "nothing 'landmark' about this decision". The press would have us believe otherwise, and the award of substantial damages, more akin to those awarded in libel than the very modest sums previously awarded in privacy cases, does lend some support to this view. As a matter of law Mr Justice Eady is correct, but the decision by the press itself to make this a "cause celebre" inevitably means that such a public defeat will encourage others in the public eye to stand up for their rights. As to the public, it would seem that its sentiment echoes the words of a blogger on the News of the World's website who states: "Finally a victory for common sense. Well done Mr Mosley......".

What are the Key Points of the Judgment?

From a practical perspective, here are the key principles that emerge from the Judgment:

1. The media may not expose private activities just because they find them distasteful or contrary to moral or religious teaching.

2. The fact that a person has or may have committed a crime – even a serious one – does not of itself deprive them of their rights under the law, including their right to privacy.

3. The Court's role is to provide an effective remedy for the infringement of a human right from which it should not be distracted by prurience, moral disapproval or religious beliefs.

4. The only justification for intruding into an individual's privacy, such as his or her sex life, is where "there is a countervailing public interest sufficiently strong to outweigh it."

5. The use of hidden cameras and other surveillance devices to obtain personal information is unlawful unless it is in the public interest and there is no other means of obtaining it.

6. The Court will now award substantial damages in privacy cases where appropriate.

Practical Guidelines

If you find out that a newspaper is about to publish private information about you, what should you do?

1. Decline to comment, telling the paper that the information is private;

2. Make it clear to the paper that you do not consent to publication taking place;

3. Raise the likelihood of either legal or Press Complaints Commission procedures being invoked if the threat of publication is not withdrawn; and,

4. Take legal advice immediately.

The Need for Speed

Speed is essential if you are going to get an injunction to stop publication of private material. Mr Mosley left his application for an injunction too late, there having been approximately 1.5 million viewings of the footage by the time the application was made. This meant that even though the judge was fully sympathetic to him when he sought an injunction (as the more recent Judgment confirms), privacy by then had been lost in the relevant material. It is essential, therefore, that any legal action is taken immediately. Mr Mosley was, however, awarded £60,000 in damages, so even if an injunction proves unattainable, the law now offers privacy claimants a substantial financial remedy.

Conclusion

Now, more than ever, there is a remedy available for unwarranted invasions of privacy. If you want further advice or an invitation to a free seminar on how to deal with the press when it threatens to infringe your rights, please contact us at jonathan.coad@swanturton.com or telephone Stephanie Taylor on 020 7520 9589. Full details of the services we offer are at www.swanturton.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.