Mosley Harmless – Max Mosley loses bid to force Press to notify Public Figures before running a story

Max Mosley, the former President of the FIA, has lost his bid to impose greater restrictions on the media when dealing with stories that involve their private lives.

Mosley won a very public privacy claim against the News Of the World in 2008 after it posted footage from and reported on what was described as a “sado-masochistic orgy” with “Nazi” overtones.

The Court awarded Mosley £60,000, but this was not enough – he made an application to the European Court of Human Rights against the British Government to argue that unless the Press were obliged to make the subject of a story aware that it may contain sensitive details of their private life, the damage would already be done in most cases. The European Court disagreed with Mosley, with the media breathing a huge sigh of relief as a result.

It’s been a busy week for media lawyers after the controversy involving details of the parties involved in various Superinjunctions being allegedly revealed on Twitter. Mosley’s case deals with more fundamental issues over which the privacy cases involving the grant of a superinjunction are fought and although the result doesn’t actually change the status quo, it is a very useful guide as to how far the Courts are willing to prioritise individual privacy over freedom of expression.

Much of the developing UK privacy law has been framed around Mosley’s 2008 case against the News Of the World over the reporting of Mosley’s involvement in what was described as a “Nazi orgy”. This was one of the main elements of the News Of The World’s defence to Mosley’s claim that his right to privacy and the confidential nature of his behavior had been infringed by the way in which the case was reported, along with the posting of actual footage from the event on the News Of The World’s Website. Mosley went on to win £60,000 in damages from the newspaper.

The Judge found no evidence of any Nazi-inspired activity in the footage shown to the Court and built on the landmark confidentiality case involving Catherine Zeta-Jones and Michael Douglas’ 2006 claim for damages against Hello Magazine. This case confirmed that “in order to find the rules of English law on breach of confidence we now have to look at…..articles 8 and 10”.

Articles 8 and 10 refer to the European Convention on Human Rights; respectively the right to respect for private and family life and the competing right to freedom of expression. In Mosley’s case, the Court looked at the competing rights of Mosley to keep the details of his sex life private and the News Of The World’s right to report on it.

The Court asks two questions in privacy cases – is the information in question protected by the right to privacy granted by Article 8 (i.e. does it give rise to a “reasonable expectation of privacy”) and if so, does it outweigh the freedom of expression granted to the Press by Article 10?

The Court then performs a “balancing act” between these rights and takes into account whether or not there is any public interest in exposing the activity in question. That balancing act will not involve questions of taste or decency, just which right should prevail. In Mosley’s case, the Judge found that if the conduct in question did not involve any illegal activity, then the sex lives of public figures are essentially no-one else’s business, that the public interest in a story would not justify publishing every “salacious detail” and that even public figures are entitled to a personal life.

No privacy case following Mosley has beaten his record damages award, and the judgment led to a raft of similar cases involving the likes of Sienna Miller and JK Rowling – keeping the lives of the rich and famous quiet has become a cottage industry. Mosley himself became an unlikely mascot for the movement and made it clear that he intended to pursue his case all the way to the steps of the European Court.

Mosley’s most recent claim was against the UK government rather than any rehash of his arguments against the News of the World – he argued that his Article 8 right to privacy and his Article 13 right to an “effective domestic remedy” had been violated by the UK government through a failure to impose a legal duty on the News Of The World to give him advance notification that the 2008 story was about to be published – this would have allowed him to apply for an interim injunction to stop it hitting the front page, which he felt was the only way that his life would not have been, as he put it “ruined”.

The Court disagreed, finding that current UK privacy law granted enough remedies to protect Mosley’s Article 8 right to privacy – there is a clear obligation to respect personal privacy and if breached a claimant can fall back on a number of options including a complaint to the Press Complaints Commission, a claim for damages, an interim injunction or even the dreaded “Superinjunction”, which prevents any mention of an injunction being in place. The damages awarded to Mosley in 2008 were, in the Court’s opinion, high enough to compensate him and the UK enjoyed a wide “margin of appreciation over how it chose to protect the Article 8 right to privacy.

Very few Media Lawyers, if any, expected Mosley to win and the ruling is nothing short of a triumph of common sense. If the Press were forced to effectively run a story by any public figure involved in it, then this would produce not so much as a chilling effect as an ice age in investigative journalism – new laws would need to be drawn up and potential criminal offences introduced for failing to comply. Notably, no other legal system in the world forces the press to do so.

The European Court’s Judgment does not let the News Of The World off the hook, and will not force any major change in existing privacy law, but it does show that the individual right to privacy will not always prevail over freedom of expression. The “Phone Hacking” cases against News International currently making their way through the High Court may lead to far higher awards in damages than in Mosley, mainly because the invasion of privacy is far more fundamental and involves criminal offences under the Regulation of Investigatory Powers Act, but for now at least the kiss and tell story is very much alive and well no matter how much Max Mosley may try to bury it once and for all.

Mosley may well make one last attempt to take his case to the Grand Chamber of the European Court of Human Rights, but realistically the only real winners in his case will be his lawyers.

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