Mosley goes down in Strasbourg: no pre-notification requirement in privacy cases

This Kat has spent the morning reading today's decision in the Fourth Chamber of the European Court of Human rights in Mosley v United Kingdom.

For those unfamiliar with this case, the former President of Formula One motor racing, Mr Max Mosley, commenced proceedings in 2008 against The News of the World newspaper after it published numerous articles and videos revealing his extra-marital sex life. The article complained of was published on the front page on 30 March 2008 with the title of ‘F1 boss has sick Nazi orgy with 5 hookers’ and with the opening sentence of ‘Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert’. Several pages inside the print edition were also devoted to the story and included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities. An edited extract of the video and the still photographs were also published on The News of the World website. The print edition also invited readers to view the video online.

In the UK High Court, Mr Justice Eady concluded that the articles and images constituted a breach of Mr Mosley’s right to privacy: Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008). Eady J declined to award exemplary damages and limited the damages available to a compensatory award (at [235]). Mr Mosley was awarded £60,000 in damages (at [236]), currently the highest award of damages in a misuse of privacy case.

Mr Mosley appealed to the European Court of Human Rights. The main issue was whether the United Kingdom, in order to protect Mr Mosley’s right to respect for his private life under Article 8, had a positive obligation to impose a legal duty on The News of the World to notify Mr Mosley prior to the publication of information which intruded upon his private life so that he may have the opportunity to obtain an injunction. Several media organisations and trade associations intervened in the case (including Guardian News & Media Ltd, The Media Lawyers’ Association, The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers’ Association, European Publishers’ Council, and The Mass Media Defence Centre). In particular, they argued that (a) prior notification was inconsistent with their right to freedom of expression under Article 10; (b) the State should be afforded a wide margin of appreciation; and (c) prior notification did not reflect continental legal practices or the practicalities of journalism.

The Fourth Section of the Court of Human Rights rejected Mr Mosley’s request for a legal pre-publication requirement (at [132]). In its judgment, the Court consistently emphasised the need to look beyond the facts of Mr Mosley’s case and to consider the broader impact of a pre-notification requirement. It also bore in mind the limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest. Therefore, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court was of the view that Article 8 does not require a legally binding pre-notification requirement.

In the end practical considerations prevailed. The Court noted (at [128]) that any pre-notification requirement would only be as strong as the sanctions imposed for failure to observe it. A regulatory or civil fine, unless set at a punitive level, would be unlikely to deter newspapers and would run the risk of being incompatible with Article 10.

The conduct of The News of the World, however, did come in for some ‘severe criticism’ from the Court (at [131]). In particular, the Court made reference to how the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Further, the Court could see no possible additional contribution made by the video footage, which appeared to have been included merely to titillate the public and increase the embarrassment of Mr Mosley.

Merpel admires Mr Mosley’s endurance in this matter: whilst most would shy away from further litigation, Mr Mosley has declared his intention to fight on. His solicitors (Collyer Bristow) have released a press release which quotes Mr Mosley as stating:

“I am disappointed at today’s judgment, because I think that there is widespread recognition that privacy is fundamental to the way we live our lives. The potential for intrusion into our privacy is enormous and we need proper protection.

My current intention is to continue with my application by way a request to the Grand Chamber and I will be discussing this with my lawyers over the next few days.”

Earlier IPKat posts on the Mosley case here, here, here, here , here and here