West Law Report

Sado-masochism not of real public interest

Posted in Times Law Report by mrkooenglish on August 1, 2008

From The TimesJuly 30, 2008

Sado-masochism not of real public interest
Mosley v News Group Newspapers Ltd in the Queen’s Bench Division
Queen’s Bench Division

Published July 30, 2008

Mosley v News Group Newspapers Ltd

Before Mr Justice Eady

Judgment July 24, 2008

It was not for the media to expose sexual conduct between consenting adults which did not involve any significant breach of the criminal law except where there was a countervailing public interest because at least one of the established limiting principles, such as victimisation or corruption of the young, came into play.

Mr Justice Eady so held in the Queen’s Bench Division, when allowing a claim by Max Mosley, president of the Fédération Internationale de l’Automobile, against News Group Newspapers Ltd for breach of confidence and/or the unauthorised disclosure of personal information said to infringe his right to private life as protected by article 8 of the European Convention on Human Rights in respect of an article in the News of the World headed “F1 boss has sick Nazi orgy with five hookers” with accompanying images and also in respect of information and video footage posted on the defendant’s website.

The video footage had been filmed clandestinely by E, one of the women present at the event in question.

The defendant argued, inter alia, that the claimant’s right to private life under article 8 was outweighed by a greater public interest in disclosure and that the newspaper’s right to freedom of expression under article 10 of the Convention should prevail because either (a) the public had an interest in knowing about the allegation that the event involved Nazi or concentration camp role-play or (b) irrespective of any Nazi element, the nature of the sexual activities was such that the public had a right to know that the claimant indulged in them because of his role as president of the FIA.

Mr James Price, QC and Mr David Sherborne for Mr Mosley; Mr Mark Warby, QC and Mr Anthony Hudson for News Group.

MR JUSTICE EADY said that the claimant sought to establish breach of confidence and infringement of the right to private life under article 8.

In order to establish a breach of confidence, he had to show there was a reasonable expectation of privacy and that on balance, weighing the competing Convention rights of the right to privacy under article 8 and right to freedom of expression under article 10 in the light of an intense focus upon the individual facts of the case, that the right to private life should prevail and that there was no countervailing public interest in publication: see In re S (a Child) (Identification: Restrictions on publication) (The Times October 29, 2004; [2005] 1 AC 593).

In the light of authority of the European Court of Human Rights, the clandestine recording of sexual activity on private property had to be taken to engage article 8 of the Convention and there had to be a particularly serious reason for interfering on public interest grounds with an individual’s right to private life.

In the circumstances, woman E had committed a breach of confidence as well as a violation of the article 8 rights of all those involved and publication of the information could only be justified if it was in the public interest to do so.

It was therefore necessary to carry out a balancing exercise and to decide whether some countervailing consideration of public interest could be said to justify the infringement of privacy.

While it was legitimate sometimes to infringe an individual’s privacy for the greater good: for example, to expose or detect a crime; where there was cruelty; where there was a potential impact on health; where young people were victimised or corrupted, the intrusion should be no more than was proportionate: see R v Brown (Anthony) (The Times March 12, 1993; [1994] 1 AC 212; Laskey, Jaggard and Brown v United Kingdom (Application Nos 21627/93; 21826/93; 21974/93)(The Times February 20, 1997; ((1997) 24 EHRR 39).

Sado-masochistic behaviour, however, even where there was adultery, was not a matter of public interest in itself and it was not for the media to expose sexual conduct which did not involve any significant breach of the criminal law.

The only permitted exception was where there was a countervailing public interest because at least one of the established limiting principles came into play, for example, where publication was to prevent the public from being misled by claims hitherto made by the individual concerned: Campbell v MGN Ltd (The Times May 7, 2004; [2004] 2 AC 457).

There could be a public interest in the secret filming and subsequent publication of behaviour that involved mocking the ways Jews were treated or parodying Holocaust horror where the claimant was accountable to an organisation and where such behaviour would call into question his role in that organisation, but the evidence before the court did not support the conclusion that the claimant had specifically ordered a Nazi or concentration camp scenario or that there was in fact a Nazi or concentration camp theme to the event and there could not therefore be said to be any public interest in publication.

It was for the court to decide ex post facto whether a particular publication was in the public interest and such a decision must be capable of being tested by objectively recognised criteria.

It could, however, be argued as a matter of public policy, that allowance should be made for a decision reached which fell within a range of reasonably possible conclusions and to that end there could be scope for paying regard to the concept of responsible journalism, whereby the court gave weight to the professional judgment of the editor or journalist at the time of the decision to publish, in deciding whether publication was in the public interest: see in the context of public interest privilege in libel Reynolds v Times Newspapers Ltd( The TimesOctober 29, 1999; [2001] 2 AC 127).

Even taking the reasonable judgment of the journalist concerned into account, there was no public interest in the publication of the information and images.

When awarding compensatory damages for breach of confidence and infringement of the right to private life there were certain principles applicable: 1 Compensatory damages could include an element of aggravation, where the defendant’s conduct increased the hurt to the claimant’s feelings; 2 The purpose of damages addressed the specific public policy factors in play when there had been a breach of confidence including personal dignity, autonomy and integrity; 3 As well as providing for distress, hurt feelings and loss of dignity, there was an element for vindication to mark the infringement of the right; nominal damages would not serve that purpose; 4 The award must be proportionate and not open to criticisms of arbitrariness and to that end there had to be a readily identifiable scale; therefore it would be legitimate to pay some attention to the current levels of personal injury awards; 5 It was legitimate to take into account the effect on the claimant of the defendant’s advancing its case on public interest; on the other hand, the extent to which the claimant’s own conduct had contributed to the nature and scale of the distress might be a relevant factor on causation.

In the circumstances, it was appropriate to award the claimant a sum of £60,000.

Exemplary damages were not available in a claim for infringement of privacy. Solicitors: Steeles; Farrer & Co.

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