Mosley, Formula 1 racing executive and son of the late BritFascist Sir Oswald, took action in 2008 against The News of the World over its publication of articles and videos that revealed his private life, in particular the feature article of 30 March 2008 titled "F1 boss has sick Nazi orgy with 5 hookers - Son of Hitler-loving fascist in sex shame" and claiming - in true NotW style - "Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert". The print edition included still images taken from video footage secretly recorded by one of the participants in Mosley's spanking session; extracts of the video were made available online by the NotW. (The recording had been made using a camera - supplied by NotW - secreted in the brassiere of one of the car czar's companions.)
The Court notes that the video footage was viewed over 1.4 million times over 30 and 31 March 2008, with the online version of the article being visited over 400,000 times during the same period and the print version of the NotW having an average circulation of over three million copies.
In Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) Justice Eady of the UK High Court concluded that the articles and images breached Mosley’s right to privacy. Mosley was awarded £60,000 in damages (currently the highest UK award of damages in a misuse of privacy case) and £420,000 costs.
Mosley appealed to the European Court of Human Rights, arguing that the UK was required by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to protect his private life, with a positive obligation to impose a legal duty on the NotW to notify him prior to publication of information which intruded upon his private life. That notification would provide an opportunity to obtain an injunction.
The Fourth Section of the Court of Human Rights in rejecting Mosley's request for a legal pre-publication requirement emphasised the need to look beyond the particular facts and consider the broader impact of a pre-notification requirement.
It noted that the UK courts had found no Nazi element in Mr Mosley’s sexual activities and had therefore concluded that there had been no public interest in, and therefore justification for, the publication of the articles and images. In addition, the newspaper had not appealed against the judgment. The Court therefore considered that the publications in question had resulted in a flagrant and unjustified invasion of Mr Mosley’s private life.
However, given that Mosley had achieved a finding in his favour before the UK court, the Fourth Chamber’s assessment concerned the balance between the right to privacy and the right to freedom of expression in relation to the UK legal system.
Reflecting comment by media interests such as Index on Censorship, the Media Lawyers' Association and European Publishers' Council that prior notification was inconsistent with the right to freedom of expression under Article 10 and that prior notification did not reflect the practicalities of journalism the Court noted the limited scope under Article 10 for restrictions on the freedom of the press regarding matter of general public interest.
Given concerns regarding the chilling effect of a pre-notification requirement, doubts about the effectiveness of such requirement and the latitude given to individual EU governments the Court held that Article 8 does not require a legally binding pre-notification requirement. It noted that any pre-notification requirement would only be as strong as the sanctions imposed for failure to observe it: a standard civil penalty would be unlikely to deter publishers, with a stronger penalty potentially being incompatible with Article 10.
A media release for Mosley quotes him as -
I am disappointed at today’s judgment, because I think that there is widespread recognition that privacy is fundamental to the way we live our lives. The potential for intrusion into our privacy is enormous and we need proper protection.Under Articles 43 and 44 of the Convention the Fourth Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court (a five judge panel). If the Grand Chamber considers the case deserves further examination it will hear the case and deliver a final judgment, reflecting practice in Australia's Federal Court. If the referral request is refused, the Fourth Chamber judgment will become final on that day.
My current intention is to continue with my application by way a request to the Grand Chamber and I will be discussing this with my lawyers over the next few days.
The Court noted that the UK Government considered Mosley was no longer a victim of a Convention violation given, in particular, that he had been compensated by the newspaper as ordered by the UK courts. Mosley insisted that he remained a victim of violation by the UK of his right to privacy, given that the damages awarded were unable to restore his privacy after millions of people in the world had seen the material. The Court found that no sum of money awarded after disclosure could be a remedy for his specific complaint that there was no legal requirement in the UK that obliged the media to give advance warning of a publication related to a person's private life. Mosley could thus claim to still be a victim of a Convention violation.
The UK Government claimed that Mosley had not exhausted domestic remedies before taking his complaint before the Court, in particular arguing that he had not appealed against the ruling by Eady J on exemplary damages, that Mosley could have pursued an account of profits claim as opposed to a claim for damagesand that he had failed to complain under the UK Data Protection Act about the unauthorised processing of his personal information and to seek rectification or destruction of his personal data. Mosley considered the proposed remedies irrelevant to his complaint.
