Coming soon… Max Mosley v United Kingdom. On the 29th September 2008, Steeles Law LLP (solicitors) on behalf of Max Mosley, has filed an application to the European Court of Human Rights (ECtHR). The application could have the potential of curtailing the current media freedom that exists within the UK. The purpose of the application is to promote the right to privacy under Article 8 of the European Convention of Human Rights (ECHR). Therefore, in the pursuit of privacy, Mr Mosley will submit that editors should be obliged by UK law to contact people they write about prior to making a publication about them.
It was established at the High Court in Max Mosley v News Group Newspapers (publishers of the News of the World) that the News Group Newspapers infringed Mr Mosley’s ‘reasonable expectation of privacy’ under the equitable remedy of breach of confidence. One should note that since there is not a free standing ‘tort of privacy’ within UK law, protection is therefore afforded through breach of confidence. Breach of confidence has been widened under the ECHR as UK courts must interpret domestic law consistently with that of the ECHR. In addition in Max Mosley v News Group Newspapers, no claim was made on behalf of Mr Mosley with regards to defamation and therefore did not directly concern injury to reputation. However, there have been a number of reports that there maybe intentions to sue the News of the World for libel.
The Max Mosley v News Group Newspapers case tilted on the factual dispute between the parties in relation to the allegation in the News of the World on Sunday 30th March 2008 that Max Mosley engaged in a ‘Nazi theme’ orgy. The importance of the ‘Nazi theme’ was critical for the newspaper, in order for it to justify the publication and invasion of Mr Mosley’s privacy on the basis of public interest. Justice Eady on the argument of public interest in relation to the ‘Nazi theme’ held that:
“if it really were the case, as the newspaper alleged, that the Claimant had for entertainment and sexual gratification been “mocking the humiliating way the Jews were treated”, or “parodying Holocaust horrors”, there could be a public interest in that being revealed at least to those in the FIA to whom he is accountable”.
Thus, one can observe that Justice Eady held that there could have been a public interest defence ‘if’ Mr Mosley had actually engaged in such a ‘Nazi theme’. However, since Justice Eady held there was no evidence that the gathering of 28th March was or intended to be an enactment of Nazi behaviour- the News Group Newspapers defence of ‘public interest’ was bound to fail. There is no public interest to justify either the intrusion of secret filming or the subsequent publication of anyone indulging in sexual activity, as it:
“would hardly be appropriate to clutter up the courts with cases of spanking between consenting adults taking place in private property and without disturbing the neighbours. That would plainly not be in the public interest”
The case held that an infringement of Mr Mosley’s privacy did occur and is well recognised with the highest ever damages in relation to privacy of £60,000. However, the problem remains that an infringement to Mr Mosley’s privacy occurred and he was unable to without advanced knowledge to prevent it. Here lays Mr Mosley’s problem. For a claimant to get an interim injunction (temporary injunction) against a defendant newspaper to stop publication. There ability to do so will rest entirely on whether the claimant has advanced knowledge of the publication. However, as UK law stands there is no current legal duty on editors to inform people such as Mr Mosley prior to publication. In turn, Max Mosley v News Group Newspapers, is a prime example of a claimant not having advanced knowledge prior to publication and therefore being unable to prevent publication.
The basis of Max Mosley v UK is best summarised by Dominic Crossley (Steeles Law LLP) stating:
“…although we all have a right to privacy, it is entirely up to the editor of a newspaper whether or not we are able to exercise that right in any effective or meaningful way. The editor of a newspaper…can take a decision to publish material which may ruin a life or destroy a family, safe in the knowledge that even if publication is later held to be unlawful, there will be no significant consequences for him”
It will interesting to see how Max Mosley v UK will play out in the ECtHR. Will the UK courts be left with the role of media censor? What are the practicalities of contacting every person you write a publication about? Is this not a situation where the UK as a member state is to be afforded a sufficient ‘margin of appreciation’ to avoid the chilling factor upon UK media? Subsequently, these questions may be answered in due course of Max Mosley v UK.
For further analysis on the potential of Max Mosley v UK, see Roy Greenslade’s Guardian blog titled “Why Max Mosley is right – and wrong”