The Right to Privacy and Advance Notification: Mosley v The United Kingdom, Part 1 – Ashley Savage and Paul Mora

27 06 2012

The Fourth Section of the European Court of Human Rights at Strasbourg handed down judgment in the case of Mosley v. The United Kingdom ((2011) 53 E.H.R.R. 30) on May 10, 2011. The applicant, Mr Max Mosley, argued that art. 8 of the European Convention on Human Rights (ECHR) imposed a positive obligation on Contracting States to enact a legal measure which required individuals to receive notification from the press in advance of them publishing information that interfered with their private lives.

He contended that the only effective remedy for invasions of privacy was an injunction which restrained the publication of personal and confidential information from being made. Mosley first became aware of an article and video footage which revealed intimate aspects of his sex life once they had been widely published by the national media in both print form and on the internet. By being denied the opportunity to seek an interim injunction in advance of publication, he argued that the United Kingdom had breached his right to privacy guaranteed by art. 8.

The European Court unanimously held that art. 8 does not require individuals to receive advance notification from the media so that they may seek an injunction restraining publication. In reaching this conclusion, Strasbourg found that the introduction of such a requirement would have a chilling effect on the right to freedom of expression guaranteed by art. 10, and expressed doubts as to its effectiveness. In addition, it noted that a wide margin of appreciation is conceded to Contracting States in ensuring compliance with positive obligations under art. 8 which have an impact on free speech.

On September 15, 2011, five judges refused the case to be referred to the Grand Chamber of the European Court. Pursuant to art.44(2) of the Convention, the judgment of the Fourth Section of the European Court became final on this date.

This post, which appears in two parts, criticises both the reasoning and findings of the European Court. After outlining the facts of the case, it will consider the remedies available to the applicant at the time of his complaint and argue that they did not adequately protect his private life. The post will then suggest that the reasoning of the European Court for refusing to introduce an advance notification requirement is unconvincing, and that the conclusion reached is unfortunate.

Factual Background and Domestic Proceedings

On 30 March 2008, the News of the World published a front-page story alleging that Mr. Mosley had taken part in sexual activities with five prostitutes and alleged that there had been a ‘Nazi’ theme to the encounter. Various photographs of Mosley accompanied the article and an edited video of the event was also made available on the newspaper’s website. The photographs and video had both been covertly recorded by one of the participants who had made a secret deal with the News of the World to sell the story. On the day of publication, solicitors acting for Mosley complained to the newspaper regarding the footage that was available on their website. The footage was initially removed however public access to the footage was later restored and a second article published.

Mosley brought legal proceedings against News Group International, owners of the News of the World, for misuse of private information. He did not dispute that the sexual activities had taken place but contested the existence of the alleged Nazi theme. In addition, he sought an injunction to restrain the footage being made available on the newspaper’s website.

In the High Court, Mr Justice Eady found that the intrusive material was only of interest to the public because it was of a “mildly salacious … [nature] which provide[d] an opportunity to have a snigger at the expense of the participants” (Mosley v. News Group Newspapers Ltd [2008] EWHC 687, at [30]). Eady J said that he had “little difficulty” in finding that the public interest in the instant case did not override Mosley’s right to privacy under art. 8 (at [6]). However, he declined to grant the injunction on the basis that the material had been extensively viewed and was so widely available that it had lost its privacy. Between 30 and 31 March 2008 the online version of the article had been accessed approximately 435,000 times, and the edited footage 1,424,959 times. In addition, since original publication, the events had received “massive coverage throughout the world, both in newspapers and on various websites” (at [6]). Furthermore, although the video had been removed from the newspaper’s website the footage remained available on the internet as it had been copied by others.

Injunctive relief could not be granted against News Group International in respect of the video that was once available on its website:

“One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.” (At [36]).

Shortly after this ruling the video was restored to the newspaper’s website.

In the proceedings at trial, Eady J. considered whether the participant who recorded the footage owed the applicant a duty of confidence. He held that those who participate in sexual or personal relationships may be expected to not reveal private conversations or activities (Mosley v. News Group Newspapers Ltd [2008] EWHC 1777). With regards to the sexual encounter in the instant case, Eady J. identified that it had been recognised in Campbell that there could be a genuine public interest in the disclosure of the existence of a sexual relationship if such a relationship resulted in a situation giving rise to favouritism or corruption (Campbell v. Mirror Group Newspapers Ltd [2004] UKHL 22, at [60]). However, the addition of salacious details or intimate photographs would be disproportionate, and would be too intrusive even if they accompanied a legitimate disclosure of the relationship.

Eady J. identified that there could be a public interest in the secret filming and subsequent publication of behaviour which involved “mocking the way Jews were treated” or “parodying Holocaust horror” where an individual was accountable to an organisation and his behaviour could call his role into question (at [128]). As President of Formula 1, Mosley had previously spoken out against racism in sport, and had dealt with many people of all races and religions. Eady J. found that the evidence did not support the conclusion that there was a Nazi theme to the event. In addition, he identified that the material had not been properly checked for Nazi content and that the German dialogue in the footage had not been translated.

Eady J. found that the general assessment of the journalist and editor in the round was not satisfactory given the gravity of the allegations and the devastating impact that the publication had. He opined that those involved thought that there was a Nazi element but had not reached a judgment based upon enquiries or analysis consistent with responsible journalism. Rather, it was made in a manner that could be characterised as “casual and cavalier” (at [170]).

With regards to the newspaper’s assessment of the lawfulness of publishing the information, Eady J. identified that the newspaper had kept the story “under wraps” until the last possible moment in order to avoid an interim injunction being sought. Whilst the quality of the journalism was in question, this did not equate to “deliberately or recklessly committing a wrong” (at [209]). Eady J. returned to this matter later in the judgment where he identified that if journalists are successful in avoiding the grant of an interim injunction (by choosing not to pre-notify) they can:

“Relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them and … that the news agenda will move on.” (At [230]).

Eady J. felt it necessary to afford damages as an adequate remedy but noted that what could be achieved by a monetary award in the circumstances was limited. He identified that an infringement of privacy cannot ever be effectively compensated by a monetary award. No amount of damages could, in his opinion, fully compensate Mosley for the harm suffered. Eady J. identified that the applicant was “hardly exaggerating” when he said that his life was ruined (at [236]).

Mosley was awarded £60,000 in damages and News Group International was ordered to pay his legal fees, estimated at £420,000, on top of its own costs of £400,000. Eady J. held that an award of exemplary damages was not available in a claim for invasion of privacy on the basis that it was neither prescribed by law nor proportionate under art. 10(2). A final injunction was granted against News Group International, which contained a public domain exception allowing for the publication of the material forming the subject matter of the action. Eady J. was moved to identify that the ruling was unlikely to inhibit serious investigative journalism into crime or wrongdoing where the public interest is more genuinely engaged.

Despite being awarded the largest sum of damages for invasion of privacy and a final injunction, Mosley made an application to Strasbourg alleging that the availability of these remedies in domestic law did not adequately protect his right to privacy guaranteed by art. 8. He contended that he remained a victim within the meaning of art. 34(1) of the Convention as these remedies could never expunge the intimate photos and embarrassing personal information from the minds of the millions of persons who had come across them. An injunction preventing the material being published in the first place was said to be the only effective remedy in his case. On this basis, Mosley alleged that the United Kingdom had breached its positive obligations under art. 8, taken alone and taken together with art. 13, as its domestic law did not impose a legal duty on the News of the World to give him advance notification of the publication. He submitted that pre-notification was required in all cases where the media intended to publish information which engaged art. 8. An exception to this general requirement would exist where it would not be in the public interest to give notification in advance of publication.

Effective Remedies for Invasion of Privacy

The requirement for Contracting States to make provisions available in their domestic laws to provide effective remedies for breaches of guaranteed rights is clearly laid down by art. 13 ECHR. In Peck v. The United Kingdom, Strasbourg reiterated the well-established principle that:

“Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief.” (At [135]).

Strasbourg’s role when a complaint is made under art. 13 is to examine the remedies available in domestic law and determine whether they are “effective” in the context of the claim. It has been held that remedies will be “effective” not only where they afford the applicant with appropriate redress for the violation that has occurred, but also where they prevent the violation from occurring in the first place (See, for example, Ramirez Sanchez v. France (2006) 45 E.H.R.R. 1099, at [160]). Contracting States will be afforded some discretion by the European Court in how they seek to conform to the obligations imposed by art. 13 under the margin of appreciation doctrine (see, for example, Peck v. The United Kingdom, at [99]).

Strasbourg found that Mosley’s complaint under art. 13 as to the absence of an effective domestic remedy was a reformulation of the complaint made under art. 8 (at [66]). Accordingly, the complaint was considered solely under art. 8, as is often the case where the essence of the principal complaint is the absence of an appropriate remedy required by another provision of the Convention (as suggested by Robin White and Claire Ovey, Jacobs, White & Ovey, The European Convention on Human Rights, 5th Edition, Oxford University Press (2010), at p. 133). In previous decisions where the European Court has considered that a complaint made under art. 13 is subsidiary to the principal privacy complaint it has stated that: “Article 8 … must be interpreted in such a way as to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (Biriuk v. Lithuania (2008) ECHR 1528, at [37]; Armonas v Lithuania (2009) 48 E.H.R.R. 53, at [38]). Thus, the requirement for an effective remedy imposed by art. 13 appears to be an attribute inherent of art. 8 itself. It is somewhat telling that this principle was not specifically mentioned by Strasbourg in Mosley, particularly in the light of the conclusions reached by the European Court. In any event, the principle is one of established Convention jurisprudence and was therefore applicable to his claim.

It was noted by Strasbourg that several remedies and a non-legal measure were in place to ensure protection of art. 8 in domestic law for cases concerning the misuse of private information. These included damages to compensate injury caused by intrusive publications, the Data Protection Act 1998 (DPA) which regulates the processing of information relating to individuals, and the availability of injunctions to restrain the publication of private material. Non-legal protection was provided by the Editors’ Code which is overseen by the Press Complaints Commission (PCC). The approach taken by the European Court in respect of these remedies and measures is significant. Instead of making a finding which determined whether these remedies provided Mosley with effective and appropriate relief for his claim made under art. 8, it was decided to simply discuss their availability in the abstract and consider the general framework for balancing the rights to privacy and freedom of expression in the domestic legal order. This approach is in marked contrast to that taken by the European Court its earlier decision in Peck:

“The Court’s task is not to review the relevant law or practice in the abstract but rather to confine itself, without overlooking the general context, to examining the issues raised by the case before it and, in particular, to considering only those remedies which could have some relevance for the applicant.” (At [120]).

Whilst it is acknowledged that Strasbourg’s assessment in the present case went beyond the specific facts of the complaint and included the wider issue of the balance to be struck between arts 8 and 10, it is suggested that by not considering the effectiveness of the remedies to protect invasions of privacy the European Court failed to properly contextualise the arguments made under art. 8 in favour of introducing an advance notification requirement.

The following discussion will now turn to consider whether the measures available in domestic law identified by Strasbourg provide an effective remedy for cases involving invasions of privacy.

Damages

When accepting that Mosley was a victim within the meaning of art. 34(1) of the Convention, Strasbourg rejected the Government of the United Kingdom’s submission that the damages and costs awarded by Eady J. in the High Court provided adequate and proportionate reparation for the harm suffered. It was therefore irrelevant that he had been awarded the largest sum of damages for an invasion of privacy in the United Kingdom, and that he could recover further damages in the proceedings he had initiated in other jurisdictions. According to Strasbourg it was not that the damages awarded by the High Court were too low in order to compensate Mosley for his invasion of privacy – in fact it had described the sum as substantial, but identified that damages could simply not provide an effective remedy for the harm which he had suffered:

“It is clear that no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant.” (At [72]).

This finding, echoing that made by Eady J. earlier, is particularly important as the European Court has moved away from a number of decisions where it had impliedly accepted that an ex post facto award of damages provides an effective remedy for the publication of private information by the press (See, for example, Von Hannover v. Germany (2005) 40 E.H.R.R. 1; and Armonas v. Lithuania (2009) 48 E.H.R.R. 53) This conclusion was to a large extent motivated by the fact that the interference to art. 8 was particularly intrusive.

A particular feature of seeking damages for invasions of privacy is that the very information that is sought to be kept confidential will be the subject of judicial proceedings and thereby receive even more public attention. Such a point did not go unnoticed by Eady J. at Mosley’s trial who commented that: “once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action” (at [230]). Indeed, the further public attention may very well act as a deterrent on individuals seeking damages from the courts, unless, of course, the litigants to the proceedings as well as the intrusive details remain anonymous.

The Data Protection Act 1998

Strasbourg noted that section 32(1) of the DPA provides a public interest exemption from the data protection principles where the information obtained has been processed for journalistic purposes. The European Court highlighted that the exemption applies to all but the seventh data protection principle, which identifies a requirement for “appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of data or accidental loss”. Section 32(3) provides that consideration of “compliance of a code of practice” will be relevant to determine whether there was a “reasonable belief” that publication was in the public interest.

The third party intervening submission made by the Media Lawyers Association argued that the DPA affords journalists with a defence on the basis that they have a reasonable belief at the time of the publication, which should not be deprived by subsequent events. Consideration of whether a journalist has followed a professional code can only take place after publication. As the Media Lawyers Association highlighted, there is no legal duty on the media to notify the subject ‘pre-processing.’ Moreover, a court is required to stay proceedings preventing the processing of material where it relates to journalistic, literary or artistic material, and which 24 hours before the proceedings has not been published by the data controller (Section 32(4) Data Protection Act).

The Government of the United Kingdom argued that the DPA would have provided the applicant with an effective remedy, had he chosen to use it. It submitted that the News of the World would have “almost certainly” breached Schedule 1 of the DPA, and would have been unable to successfully argue that the information fell within the public interest exemption contained in section 32(1) (Mosley v. The United Kingdom, Observations of the Government of the United Kingdom on the Admissibility and Merits of the Case, at [3.11]). It noted that the applicant would have had access to additional remedies under section 14 and damages. These additional remedies included the rectification, blocking, erasure and destruction of inaccurate data. The applicant responded that he was not motivated to seek further damages as he made his complaint about the absence of a law which prevented publication.

Section 14(3) DPA allows for a court to order a data controller to notify third parties of the rectification, blocking, erasure and destruction of data. In doing so it must consider under section 14(6) whether it is reasonably practicable to grant the order by having particular regard to the number of people who would have to be notified. In a leading text on Data Protection, Carey identifies that it is not clear whether this provision means that an order is “less likely” if the dissemination of inaccurate information “is more widespread”; however, if so, he finds that it would suggest that “the larger the damage the less effective the remedy” (Peter Carey, Data Protection: A Practical Guide to UK and EU Law, 3rd Edition, Oxford University Press (2009), at p. 154). It is submitted that in cases where the publication of material results in a breach of the DPA, it would prove incredibly difficult to notify third parties. The publication of a correction and removal of the offending information may go some way to achieve this aim, however in the applicant’s own case the footage had been viewed all over the world via the internet. Without the subject having prior knowledge of the intended publication, the DPA is unlikely to provide individuals with an adequate remedy because, in the current information age, any publication of material is likely to result in further publications being made elsewhere on the internet, rendering the possibility of correction or removal ineffective. It is only with advance notification that an individual can seek an injunction to prevent the dissemination of inaccurate information at its source.

Injunctions

Although Strasbourg noted the possibility for an injunction to be obtained from a domestic court to restrain the publication of private and confidential information, it only mentioned its availability in the abstract and failed to give any consideration to whether injunctive relief could grant Mosley with an effective remedy to protect his right to privacy in the instant case. As noted above, Eady J. found that he could do nothing other than decline Mosley’s application for a post-publication interim injunction to restrain the video footage from remaining available on the newspaper’s website. The edited footage had simply lost its privacy through entering the public domain and there was nothing left for the law to protect. Similar considerations applied to the final injunction granted by Eady J. which contained a public domain exception. The position taken in relation to both injunctions is well established at law and is likely to be followed in instances where applications are made to domestic courts to restrain the continued and further publication of private information.

Somewhat ironically Strasbourg stated that “if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the material” (at [119] (emphasis added)). According to the European Court, an interim injunction granted in advance of publication is a remedy which seeks to ensure protection of art. 8. Whilst domestic law does allow for injunctive relief to be granted in such a context, the inherent practical problem, as argued by Mosley in his complaint to Strasbourg, is in being aware of the pending publication.

The Editors’ Code and the Press Complaints Commission

In addition to legal remedies, the self-regulation of the press was identified by the European Court as providing a system which offered protection to art. 8. At the time of Mosley’s complaint Clause 3 of the Editors’ Code recognises the right to respect for private life. There is no requirement in the Code for editors to contact individuals in advance of publishing intrusive and personal information. However, a failure to contact ahead of publication may constitute a lack of care and lead to a breach of Clause 1 of the Editors’ Code on accuracy. It is suggested that Clause 1 is limited in its ability to protect privacy as it is aimed at testing the truth of a story, and largely seeks that stories contain all the relevant sides. Moreover, Clause 1 will not cover intrusive publications which reveal intimate and personal information if they are truthful.

The Editors’ Code is overseen by the PCC. If a complaint is upheld by the PCC a public ruling is issued, and this ruling is to be published by the offending newspaper in full and with due prominence. Similar to seeking damages for invasions of privacy from the courts, complaints made to the PCC will lead to information which was sought to be kept private and confidential receiving further public exposure. A further difficulty with the self-regulating system, and indeed one recognised by Strasbourg in Peck, is that the PCC does not have the power to prevent an intended publication that is in breach of the Editors’ Code from being made (at [109]).

Dr. Ashley Savage is a Lecturer in Law at Northumbria Law School, Northumbria University: ashley.savage@northumbria.ac.uk.

Paul David Mora is a Lecturer in Law at BPP Law School, University College: Paulmora@bpp.com.

The full text of this article originally appeared in the Entertainment Law Review ([2011] 22(8) Ent LR 233-241) and is reproduced with permission and thanks.


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