Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB), [2008] All ER (D) 322 (Jul)
Queen’s Bench Division
Eady J
24 July 2008
The clandestine recording of sexual activity on private property engages Art 8 of the European Convention on Human Rights (the Convention) and may constitute an actionable breach of privacy. However, exemplary damages are not admissible in a claim for infringement of privacy.
James Price QC and David Sherborne (instructed by Steeles) for the claimant. Mark Warby QC and Anthony Hudson (instructed by Farrer & Co) for the defendant.
The claimant had been president of the Federation Internationale de l’Automobile (FIA) since 1993 and was a trustee of its charitable arm, the FIA Foundation. The proceedings concerned an article in one of the defendant’s newspapers which appeared under the heading “FI Boss has sick Nazi orgy with 5 hookers”, accompanied by the sub-heading “Son of Hitler-loving fascist in sex shame”.
The article concerned an event, which had taken place on 28 March 2008 involving the claimant and five women, described variously as a “party” by the claimant and “an orgy” by the defendant. It had been filmed by one of the women with a concealed camera. She had been paid to do so by the defendant. Further articles were published by the defendant and extracts from the video of the event were placed on its website. The text on occasion made references to “Auschwitz” and “Nazi uniforms” and drew attention to the links between the claimant’s father and Nazi Germany.
The claimant brought an action in breach of confidence and/or the unauthorised disclosure of personal information, said to infringe the claimant’s rights of privacy as protected by Art 8 of the Convention. There was no claim in defamation. The defendant argued that the claimant had no reasonable expectation of privacy in relation to the information concerning the event or the visual images thereof; alternatively, the claimant’s right to privacy under Art 8 was outweighed by a greater public interest in disclosure, such that the defendant’s right to freedom of expression under Art 10 should, in the circumstances, prevail. It submitted that the alleged Nazi aspect of the claimant’s activities was of public interest and justified publication.
MR JUSTICE EADY:
There was a considerable body of jurisprudence in Strasbourg and elsewhere which recognised that sexual activity engaged the rights protected by Art 8 (see Dudgeon v UK (1981) 4 EHRR 149).
There was another line of authority addressing the matter of surveillance and clandestine recording. In Craxi (No 2) v Italy [2003] ECHR 25337/94 the court held that it was a violation of the claimant’s Art 8 rights to play, even in court in the course of a prosecution for corruption, covertly recorded private telephone conversations.
The clandestine recording of sexual activity on private property therefore had to be taken to engage Art 8. What required closer examination was the extent to which such intrusive behaviour could be justified by reference to a countervailing public interest.
The principal argument on public interest related to the Nazi theme. If it really had been 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 have been public interest in that being revealed at least to those in the FIA to whom he was accountable.
On the other hand, since his lordship had concluded on the facts that there was no such mocking behaviour and not even any evidence of imitating, adopting or approving Nazi behaviour, his lordship was unable to identify any legitimate public interest to justify either the intrusion of secret filming or the subsequent publication.
His lordship therefore considered whether or not the residual S and M behaviour and other admitted aspects of what took place during the event could be said in themselves to be matters of legitimate journalistic investigation or public interest. Counsel for the defendant described it as immoral, depraved and to an extent adulterous. Even if there was adultery and even if one happened to agree that it was “depraved”, it by no means followed that these were matters of genuine public interest.
Modernity
The modern approach to personal privacy and to sexual preferences and practices was very different from that of past generations. First, there was a greater willingness to accord respect to an individual’s right to conduct his personal life without state interference or condemnation.
Second, remedies should be available against private individuals and corporations (including the media) because absent any serious element of public interest, they were obliged to respect personal privacy as much as public bodies. It was not merely state intrusion that should be actionable.
Third, it was not for the state or for the media to expose sexual conduct which did not involve any significant breach of the criminal law. That was so whether the motive for such intrusion was merely prurience or a moral crusade. It was not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval.
Where the law was not breached, the private conduct of adults was essentially no-one else’s business.
The claimant had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property. That had been breached in the instant case.
His lordship further held that exemplary damages should be disallowed in the context of a claim founded on privacy and/or breach of confidence. Such a step could not be justified by reference to the matters identified in Art 10(2) of the Convention. It could not be said to be either “prescribed by law” or necessary in a democratic society. There was no “pressing social need”. The “chilling effect” would be obvious.
There was no existing authority (whether statutory or at common law) to justify exemplary damages in context and, indeed, it would fail the tests of necessity and proportionality.
Damages had to be confined to a compensatory award (which could include an element of aggravation, if appropriate).
It was necessary to afford an adequate financial remedy for the purpose of acknowledging the infringement and compensating, to some extent, for the injury to feelings, the embarrassment and distress caused. The right award was £60,000.
