The European Court of Human Rights (ECHR) delivered the decision in Mosley v United Kingdom on Tuesday 10 May 2011. The central question was whether the United Kingdom had a positive obligation to protect Mr Mosley’s privacy by providing for a legal duty for media publishers to inform him that a story was being written so as to give him an opportunity to seek an injunction to prevent publication of the story. The ECHR rejected Mr Mosley’s application with the court noting that such as requirement of pre-notification of stories would have a “chilling effect” on the press.[1]
Now the back story. On 30 March 2008 the ‘News of the World’ published an article under the headline “F1 boss has sick Nazi orgy with 5 hookers”. While Mr Mosley (the former head of Federation Internationale de l'Automobile that organises Formula One motorsport) had no warning of the publication of the story, the contents of the story included still photos extracted from a video taken clandestinely by one of the participants. Later that day Mr Mosley attempted to injunct the publication of an extract of that video on the ‘News of the World’ website, Eady J refused an injunction as the video had been extensively viewed during the hours the video was accessible on the Web before it was voluntarily removed by the newspaper;[2] Eady J commenting that the grant of the order in the terms sought would make very little practical difference and that, “[t]he Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures.”[3] The video was subsequently reinstated on the newspaper’s website.
Later in 2008, Max Mosley obtained a judgment for breach of his right to privacy and damages of £60,000 against the publishers of the ‘News of the World’.[4] Eady J held that the clandestine video taken by one of the participants was a breach of confidence and a violation of the Article 8 rights of all those involved; publication could only be justified if it were in the public interest. Eady J held that the publication of the video was not a matter of genuine public interest that justified interference in Mr Mosley’s private life. The allegation of adultery did not place the story in the public interest and the ‘News of the World’ were unable to produce evidence that whatever was taking place had a Nazi theme – Eady J commented on the absence of any specifically Nazi indicia in the video - so there was no basis for the newspaper story being the public interest on that basis. [5]
Privacy and media freedom arguments in Europe are conducted in an environment in which privacy and freedom of communication arguments address the relevant articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention contains a right to a private life in Article 8 in that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”.[6] The European courts must balance this privacy interest with the freedom of communication in Article 10 of the Convention.[7] The obligations in the Convention are reflected in the Human Rights Act 1998 (UK).
In Mosley v United Kingdom the ECHR consider the now extensive case law concerned with balancing privacy interests with media freedom. The ECHR commented “that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest”.[8] The ECHR noted the system of self-regulation of the press that operated in the United Kingdom, with guidance provided in the Editors’ Code and Codebook and oversight of journalists’ and editors’ conduct by the Press Complaints Commission (PCC).[9]
The conclusion of the ECHR was that “[h]owever meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism.”[10] The role and effectiveness of the PCC is questioned by some lawyers who represent celebrities that are the focus of the tabloid press.[11]
In commencing the ECHR action, Mr Mosley set out to persuade the European court that media organisation should have a legal duty to give prior notice to the subjects of stories when the media organisation intend to publish a story that relates of their private life. The argument being tabloid editors may choose to ignore the Human Rights Act protections of privacy; with the tabloid editors being assumed to believe the subjects will not incur the costs of added publicity of proceeding with breach of privacy litigation. What Mr Mosley seeks to achieve in the ECHR is opposed by media organisations that anticipate that if prior notice is a legal requirement then the subjects of the “kiss and tell” and other embarrassing stories will proceed to seek injunctions; with media organisations submissions t0 the ECHR addressing media freedom and the considerable legal costs and disruption to editorial departments that could flow from an obligation to give pre-publication notification.
The House of Commons Culture Media and Sport Committee, in their Report issued on 9 February 2010, did not support requiring pre-publication notification with the Committee concluded that “a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a “public interest” exception”.[12]
It is possible for Mr Mosley to proceed to appeal and argue the matter in a “Grand Chamber” hearing, indeed a media release from his lawyers indicates that is being considered. However the ECHR decision of 10 May 2011 leave little scope argument that the U.K. government have failed to comply with any European or international obligation in allowing the tabloid media to operate under the system of self-regulation – backed up by the PCC and the availability of legal remedies. The ECHR noted that Mr Mosley “has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned.”[13] The decision will not end the privacy debate in the U.K. It is possible that statutory press regulation could be introduced to include a pre-publication requirement in a statutory code.
The impact of ECHR decisions on the other common law jurisdictions is less direct given that the Convention is part of European law, and is not a global human rights convention, such as the Universal Declaration of Human Rights (UDHR).[14] Mosley v United Kingdom will not have a direct impact on Australian law, although it may reignite the privacy debate and return attention to the Australian Law Reform Commission’s 2008 report on privacy.[15] In Australia[16] and New Zealand,[17] the boundaries of privacy interests and the existence, or not, of an action for invasion of privacy is a matter of continuing debate, with privacy law at different stages of evolution in each jurisdiction. The decision of the High Court of Australian in Australian Broadcasting Corporation v Lenah Game Meats[18] re-open the privacy debate; with decision of the Victorian Supreme Court in Giller v Procopets[19] and the Queensland District Court in Grosse v Purvis[20] providing support for a privacy tort in the courts of first instance.
A further strand in this privacy debate is the prevalence of courts issuing injunctions in which even the existence of the grant of the injunction is prohibited, together with reporting of the subject matter that is private or confidential information. My earlier blog commented on the so-called super-injunctions. Sometime later in 2011 a committee of judges headed by Lord Neuberger, the Master of the Rolls, is to publish the report of an inquiry into super-injunctions, and the U.K. Government is expected to consider the report in a Bill on defamation and libel law. The report of the inquiry should also be of interest in Australia to the extent it provides guidance as to the exercise of common law judicial powers to grant suppression orders.
Around the time the decision in Mosley v United Kingdom was being delivered the other media story concerned how Twitter was being used to get around the super-injunctions, with the ‘viral effect’ of postings on social media websites having the potential to subvert any super-injunctions issued against the ‘traditional’ media. However on investigation the BBC concluded that the information being disseminated was incorrect – so that the use of Twitter only served to confuse rather than inform.
[1] 48009/08 [2011] ECHR 774 (10 May 2011) [132].
[2] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) (9 April 2008). The video was accessible for about 24 hours before being was removed; the on-line version of the article was visited approximately 435,000 times, whereas the edited footage itself was viewed about 1,424,959 times over the same period.
[3] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) (9 April 2008) [34].
[4] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008).
[5] Eady J also held that exemplary damages were not available in a claim for infringement of privacy: a claim for compensatory damages could reflect an element of aggravation.
[6] Article 8. 2. of the Convention states: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[7] Article 10 of the Convention states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
[8] 48009/08 [2011] ECHR 774 (10 May 2011) [117].
[9] 48009/08 [2011] ECHR 774 (10 May 2011) [119].
[10] 48009/08 [2011] ECHR 774 (10 May 2011) [121].
[11] “This house believes English libel laws are fit for purpose” – a Queen Mary/City University Seminar – Judith Townend (6 May 2011) http://inforrm.wordpress.com/2011/05/06/news-%E2%80%9Cthis-house-believes-english-libel-laws-are-fit-for-purpose%E2%80%9D-%E2%80%93-a-queen-marycity-university-seminar-%E2%80%93-judith-townend/
[12]2nd Report of Session 2009-10, HC 362. [93] http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36205.htm#a8
[13] 48009/08 [2011] ECHR 774 (10 May 2011) [124].
[14] Universal Declaration of Human Rights (UDHR) Article 12 “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence …”; Article 19 “Everyone has the right to the freedom of opinion and expression …”. The UDHR is a declaration adopted by the United Nations General Assembly (A/RES/217, December 10, 1948), http://www.un.org/Overview/rights.html
[15] Australian Law Reform Commission, ALRC Report 108, For Your Information: Australian Privacy Law and Practice, (May 2008) Volumes 1-3.
[16] Privacy interests have been considered in the context of access to pleadings by non-parties in Llewellyn v Nine Network Australia [2006] FCA 836; and freedom of the media in the context of injunctions to prevent publication of allegedly defamatory material in Heartcheck Australia v Channel 7 Sydney [2007] NSWSC 555.
[17] New Zealand has enacted the Bill of Rights Act 1990 (BORA), in which s. 14 provides that “[e]veryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”. However BORA does not create a guaranteed right of privacy. Privacy interests are recognised in the context of the extended understanding of breach of confidence; with the NZ courts also recognising privacy values in s. 5 BORA. While Hosking v Pacific Magazines [2004] NZCA 24, rejected the privacy claims of the applicants, the court gave some support for the evolution of an action for breach of privacy.
[18] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63; (2001) 208 CLR 199; (High Court of Australia).
[19] Alla Giller v Boris Procopets [2004] VSC 113 (Victorian Supreme Court).
[20] Alison Robyn Grosse v Robert James Purvis [2003] QDC 151; Aust Tort Report 81-706 (Queensland District Court).
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