Case Summary and Outcome

The Fourth Section of the European Court of Human Rights concluded that the United Kingdom had not failed its positive obligations in relation to the right to privacy. The complaint had been brought by an individual who had recovered monetary compensation from the domestic courts for having had his privacy infringed by a newspaper article concerning sexual activities in which he had engaged in private. The complainant maintained that, in order to adequately protect privacy, the U.K. had a duty to require publishers to notify subjects before the publishing of articles concerning their private life, in order to afford them the opportunity to request an injunction before publication. The Court reasoned that, in light of its potential “chilling effect” on freedom of expression, its questionable effectiveness and the wide margin of appreciation afforded to individual Members,  States could not be said to have an obligation to impose such a pre-notification requirement.

Facts

On March 30, 2008, the “News of the World”, which had an average circulation of over 3 million copies, published an article concerning the sexual activities of former Formula 1 motor racing chief Max Mosley. The article was headed “F1 boss has sick Nazi orgy with 5 hookers” and opened with the sentence “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. The article was accompanied by still photographs taken from video footage that had been secretly recorded by one of the participants in the sexual activities who had been paid in advance to record the activities. Still images and an edited extract of the video were also made available on the website of the newspaper after which they were also reproduced elsewhere on the internet.

Later on the same day of the publication, Mosley’s attorneys complained to the newspaper and on the following day the newspaper voluntarily removed the video footage and agreed not to show it again without giving 24 hours’ notice. However, the footage had already been viewed over 1.4. million times before its removal.

On April 4, 2008 Mosley initiated legal proceedings against the newspaper claiming damages for breach of confidence and invasion of privacy. He also complained about the characterization of his activities as Nazi role-play and sought an injunction to restrain the newspaper from making the footage available again.

On April 9, 2008 High Court Judge Mr. Justice Eady refused to grant the injunction. While he recognized that there was “no legitimate element of public interest which would be served by the additional disclosure of the edited footage” he considered that an injunction would have not served any practical purpose given the footage was already widely available elsewhere on the internet. He reasoned that “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 that there was “no point in barring the News of the World from showing what is already available”

On July 24, 2008 the High Court issued its judgment in the privacy proceedings. Judge Eady concluded that there was no element linking Mr. Mosley’s sexual activities with Nazi role-play noting that: “When Mr Myler [the editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘mocking’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘responsible journalism”.

The Judge also acknowledged that the reason the newspaper did not notify Mr. Mosley before the publication of the article was “to avoid the possibility of an interlocutory injunction”. However, he also considered that “it would not be right to equate such tactics with deliberately or recklessly committing a wrong”. The judge declined to award exemplary damages and limited the damages available to a compensatory award reasoning that, as damages awarded for the purpose of deterrence would have to account for the means of the relevant defendant, an amount sufficient to deter News of the World would have to be so large that it would fail the test of proportionality and risk a “chilling effect” on freedom of expression.

The Judge also noted that “whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them”. Despite this, he considered that “that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party”. Following this reasoning, he awarded Mr. Mosley GBP60,000.00 in damages and GBP420,000.00 in costs and granted a final injunction.

Despite receiving this award, Mr. Mosley considered that the U.K had failed its duty to protect his privacy by not imposing on the publishers a requirement that subjects be notified before an article concerning their private life is published. Because of this, he brought an application before the European Court of Human Rights where the Fourth Section issued a decision on May 10, 2011.

Decision Overview

The issue for the Fourth Section of the European Court of Human Rights to decide was whether States had an obligation under Article 8 of the ECHR to require publishers to notify subjects before an article concerning their private life was published.

Max Mosley (the applicant) argued that, in order to protect his privacy,  the U.K. “had an obligation to enable him to apply for an injunction by requiring that he be notified prior to publication of an article which interfered with his private life”. He further argued: (1) that the lack of a prior notification requirement encouraged editors not to notify subjects as subjects would be unlikely to wish to pursue litigation after publication due to fear of attracting further attention to the embarrassing or damaging information; (2) that a system where the balancing between the rights to freedom of expression and to private life only took place after publication did not afford sufficient protection to privacy as, once lost, privacy could not be regained; (3) that notification before publishing was one of the requirements of responsible journalism; (4) that States had a margin of appreciation regarding the precise scope and mechanics of a pre-notification system but not as to whether to require notification or not; and (5) that the practical difficulties States could face in enforcing a prior-notification system and developing an adequate system of exceptions for it could not justify not establishing one.

The government of the U.K., on its part, argued that its positive obligation to protect the applicant´s privacy did not require it to subject publishers to a legally binding prior-notification requirement. It further argued: (1) that an unavoidable consequence of a prior-notification requirement would be an increase in the number of interim injunctions granted in detriment of freedom of expression; (2) that compulsory notification would be contrary to the internationally accepted standards set by the Council of Europe; (3) that there were insuperable difficulties for imposing a legal pre-notification requirement including in defining the scope of the obligation, the categories of press and media that would be subjected to it, and the cases in a which a public interest exception would apply.

The ECtHR began its analysis by acknowledging that the case before it had “resulted in a flagrant and unjustified invasion of the applicant’s private life”. The Court then preceded to review its doctrine concerning the “margin of appreciation” afforded to States in the discharging of their positive obligations under Article 8 of the ECHR. Similarly, the Court reviewed its case-law on freedom of expression highlighting that: “editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, ‘the protection of … the rights of others’, including the requirements of acting in good faith and on an accurate factual basis and of providing ‘reliable and precise’ information in accordance with the ethics of journalism” and that a less robust protection of freedom of expression applies to “to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life”.

The Court also recalled that it “must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern” and 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”. However the Court also noted that “prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.”

The Court then proceeded to note that, while the U.K had not implemented the prior-notification requirement demanded by the applicant, it had adopted a number of other measures for the protection of the right to privacy of persons on its territory. The Court also observed that “in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information”. Finally, the Court stated that its decision on the applicant’s petition would have implications for freedom of expression that would not be “limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism”.

After these preliminary considerations the Court proceeded to conclude that, the despite the U.K. Government’s contentions, it would be possible to define with sufficient clarity which actors would be subjected to the prior notification requirement and in which cases the requirement would apply. However, the Court also concluded that a pre-notification obligation would require, as accepted by both parties,  some form of “public interest” exception.  In the view of the Court, “in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a ‘public interest’ at stake would have to be sufficient to justify non-notification, even if it were subsequently held that no such ‘public interest’ arose”. The Court also considered that the “public interest” exception would have to be broad and not limited to specific cases such as the a risk of destruction of evidence because “a narrowly defined public interest exception would increase the chilling effect of any pre-notification duty”. In this relation, the Court noted that it was possible that, even if the prior-notification requirement had been in place before the publishing of the article concerning the applicant, the newspaper could have opted not to notify the applicant under the public interest exception.

The Court also considered that, in order to really deter newspapers, a regulatory or civil fine would have to be set at a punitively high level otherwise newspapers like the News of the World would simply opt to incur an ex post facto fine even if there was a legal prior notification requirement. According to the Court, while punitive fines or criminal sanctions could be effective in ensuring compliance with the pre-notification requirement these would run the risk of being incompatible with the requirements of freedom of expression. The Court found itself “satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention”.

In light of the all of the above and while acknowledging the conduct of the newspaper in the applicant’s case was open to severe criticism, the Court concluded that “having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, [sic] Article 8 does not require a legally binding pre-notification requirement”. Thus, the Court ruled that the U.K. had not violated its obligations under Article 8 of ECHR.