Formula One boss’s privacy breached, but limited rights to seek an injunction

Mosley v the United Kingdom (48009/08) (10 May 2011)

Summary

The European Court of Human Rights has ruled against former Formula One boss Max Mosley in the latest round of the well-publicised litigation he initiated in 2008 after the UK newspaper News of the World published an article and photographs alleging he had participated in sexual activities with five prostitutes in a London flat.

On 10 May 2011, the Court unanimously held that there had not been any violation of Mr Mosley’s right to protection of private and family (as protected by article 8 of the European Convention on Human Rights) arising from the United Kingdom’s failure to impose on newspapers a legal duty to notify a person prior to publishing material which may breach the person’s article 8 rights, thus giving them the opportunity to seek in interim injunction preventing publication.

Facts

In March 2008, News of the World published a front page article about Mr Mosley entitled “F1 boss has sick Nazi orgy with 5 hookers”, accompanied by further stories and photographs inside the newspaper.

Mr Mosley initiated proceedings against News of the World, seeking injunctive relief and damages for breach of confidence and invasion of privacy. While the High Court refused to grant an interim injunction because the information had already been published extensively enough that it was no longer confidential, at trial the High Court held that there was no public interest justifying publication and thus Mr Mosley’s right to privacy had been breached. The High Court allowed Mr Mosley ₤60,000 in damages for the breach, and ₤420,000 for legal costs.

Mr Mosley lodged a complaint with the European Court of Human Rights later in 2008 alleging that despite the monetary compensation he remained a victim of Convention violation because News of the World was not legally required to notify him in advance of publication of the material in question. He alleged this constituted a breach of article 8 (the right to privacy) alone, and when read together with article 13 (the right to an effective remedy).

The central questions before the Court were:

• Did the Government have a positive obligation to protect Mosley’s privacy by imposing a legal duty on News of the World (and all media in the general case) to warn him in advance of publication; thus allowing him to seek an interim injunction?
• Would such a requirement strike the correct balance between the privacy interests protected under Article 8 and freedom of expression (Article 10)?
• Are privacy damages adequate remedies for invasions of privacy and had Max Mosley exhausted his remedies?

Decision

At the outset the British Government argued that Mr Mosley was no longer a victim of Convention violation because he had been compensated by an award of damages (and costs) and that he had not exhausted his domestic remedies by not appealing a decision to refuse him exemplary damages or an account of profits. The Court held that he remained a victim because no amount of money could remedy his complaint about the lack of a pre-notification requirement, and of the alternative domestic remedies referred to by the British Government none were relevant to his specific complaint before the Court.

On the substantive complaint, the Court relied heavily on the margin of appreciation afforded to states in relation to the measures they adopt to protect people’s right to privacy. In the case of the United Kingdom, the Court emphasised the fact that a number of measures have been put in place to protect an individual’s article 8 rights. More broadly the Court noted that Mr Mosley had not provided any examples of other jurisdictions in which a pre-notification requirement existed. The Court also referred to previous jurisprudence in which it ‘implicitly accepted’ that damages following publication did provide an adequate remedy for article 8 breaches where newspapers publish private information which is later held to be not in the public interest and thus not justified (eg Von Hannover v. Germany, no. 59320/00 and Armonienė v. Lithuania, no. 36919/02).

In conclusion, the Court expressed the view that the newspaper’s conduct was open to severe criticism and acknowledged that the private lives of persons in the public arena have become “a highly lucrative commodity for certain sectors of the media”. Nevertheless, the Court held that compliance with article 8 does not require a legally binding pre-notification requirement because of:

• the possible ‘chilling effect’ of imposing such a duty;
• significant doubts about its effectiveness; and
• the wide margin of appreciation afforded to states to determine appropriate methods to secure respect for the right to private life.

Relevance to the Victorian Charter

The Court’s decision that a legally binding pre-notification requirement is not required to be introduced for a state to comply with article 8 of the European Convention suggests that the voluntary introduction of such a measure by Governments is unlikely. Further, the decision suggests that if such a requirement was introduced in Victoria, for example, there is in fact a risk it would be incompatible with the right to freedom of expression, particularly if it was accompanied by punitive fines and criminal sanctions.

Jonathan Kelp is Senior Associate and Coordinator of the Mallesons Stephen Jaques Human Rights Law Group