One of the paradoxes of bringing a privacy claim is that the activities upon which it is based are held up to considerable scrutiny, particularly when it is the very nature of those activities upon which the assessment of the public interest in revealing otherwise private information is made. The recent case of Max Mosley v News Group Newspapers Ltd  EWHC 1777 (QB) gives us a sense of how much an unjustified intrusion into the private life of an individual, revealing intimate details of a sexual nature, might be worth where the court accepts that the claimant’s life is “ruined”.
The Claimant, Max Mosley, is the President of the Fédération Internationale de l’Automobile (FIA). The action was against News Group Newspapers as publishers of the News of the World. It concerned an article by Neville Thurlbeck, published in the newspaper on 30 March 2008 under the heading F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS. The article was accompanied by the subheading Son of Hitler-loving fascist in sex shame and described a sadomasochistic (S&M) “party” involving Mr Mosley. The same information and images were posted on the News of the World website, which also contained video footage of the party. A follow-up article published on 6 April headed EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS carried a purported interview with one of the women who had attended the party and had filmed clandestinely what had taken place with a concealed camera that had been supplied by the newspaper.
Mr Mosley sued for breach of confidence and/or the unauthorised disclosure of personal information, in breach of his right to privacy under Article 8 of the European Convention on Human Rights. The basis of the claim was that the content of the published material was inherently private in nature, consisting as it did of sadomasochistic and sexual activities and also that there had been a pre-existing relationship of confidentiality between the participants. It was Mr Mosley’s case that they had all taken part in the activities on the understanding that they would be private and that none of them would reveal what had taken place. The judge was told that there is a fairly tight-knit community of S&M activists and that it is an unwritten rule that people are trusted not to reveal what has gone on. Mr Mosley alleged against the woman in question (known as “Woman E”) that she breached that trust and that the journalist concerned must have appreciated that she was doing so. Mr Mosley claimed exemplary damages.
The News of the World’s case was that Mr Mosley had no expectation of privacy in relation to the information concerning the events, and alternatively, that even if he did, his right to privacy was outweighed by a greater public interest in disclosure, such that the newspaper’s right to freedom of expression under Article 10 of the Convention should prevail. The newspaper argued that the public had an interest in knowing of the newspaper’s and/or Woman E’s allegation that the party involved Nazi or concentration camp role play and that, because of his role as President of the FIA, the public had a right to know that Mr Mosley was committing offences such as assault occasioning actual bodily harm and brothel keeping.
THE NEW METHODOLOGY
Mr Justice Eady said it was clear that the claim was partly founded upon “old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information”. Reviewing increasingly familiar case law, the judge acknowledged that the law of “old-fashioned breach of confidence” had been extended in recent years under the stimulus of the Human Rights Act 1998. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.
If a claimant could show a reasonable expectation of privacy, the next step was for the court to weigh the relevant competing Convention rights of privacy and freedom of expression in the light of an “intense focus” upon the individual facts of the case. In this respect, the judge noted that no one Convention right takes automatic precedence over another. Nor could it be said, without qualification, that there was a “public interest that the truth should out”. Thus, in the particular circumstances, it was necessary to examine the facts closely and to decide whether (assuming a reasonable expectation of privacy had been established) some countervailing consideration of public interest might be said to justify any intrusion that has taken place. This was integral to what has been called “the new methodology”.
Applying an “intense focus” was therefore incompatible with making broad generalisations. The “ultimate balancing test” of Convention rights turned to a large extent upon proportionality. The judge would often have to ask whether the intrusion, or perhaps the degree of the intrusion, into a claimant’s privacy was proportionate to the public interest supposedly being served by it. Additionally, the balancing process involved an evaluation of the use to which the relevant defendant had put, or intended to put, his or her right to freedom of expression. This had particular significance in the context of photographs. The judge stressed that whilst there might be a good case for revealing the fact of wrongdoing to the general public, it would not necessarily follow that photographs of “every gory detail” also needed to be published to achieve the public interest objective. Nor would it automatically justify clandestine recording. This is acknowledged in Clause 10 of the PressComplaints Commission Editors’ Code. Thus the very fact of clandestine recording might be regarded as an intrusion and an unacceptable infringement of Article 8 rights.
THE INTRUSIVE NATURE OF PHOTOGRAPHY
The judge noted that the intrusive nature of photography has been fully discussed in the case of Von Hannover v Germany  40 EHRR 1 and also in UK case law. In D v L  EMLR 1, Waller LJ stated that a court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information that the photograph provides. More specifically, it was acknowledged by Lord Hoffmann in Campbell v MGN  2 AC 457 that there could be a genuine public interest in the disclosure or the existence of a sexual relationship, but that the addition of salacious details or intimate photographs would be disproportionate and unacceptable.
At the Court of Appeal stage in Campbell  QB 633, Lord Phillips stated that, provided the publication of particular confidential information is justifiable in the public interest, the journalist must be given reasonable latitude as to the manner in which the information is conveyed to the public. Yet, for the reasons given by Lord Hoffmann, it should not be assumed that, even if the subject matter of the party was of public interest, the showing of the film or pictures was a reasonable method of conveying that information. It was a question of proportionality. In Theakston v MGN  EMLR 22, the court granted an injunction in respect of photographs taken inside a brothel, even though it recognised that it was not appropriate to restrain verbal descriptions of what the claimant did there.
A NAZI THEME?
The judge dealt first with the primary issue of fact. Was there a Nazi theme at the party? In his view, there clearly wasn’t. The newspaper sought to substantiate the allegation by reference to the wearing of military uniforms, striped prison pyjamas, the use of German accents and the type of language used, as well as what it considered concentration camp style role play. The judge rejected those submissions.
According to the judge, there was nothing inherently Nazi in the activities. Beatings, humiliation and the infliction of pain were inherent in S&M activities, as were the enactment of domination, restraints, punishment and prison scenarios. Behaviour of this kind, in itself, was therefore in this context merely neutral. It did not entail Nazism. There was nothing specifically Nazi about the uniforms and there was nothing to identify the striped pyjamas as of the Nazi era. People run the London Marathon wearing “prison” costumes.
The judge also accepted that German was merely used because it was a foreign language and the language itself was “more suitable for use by those playing a dominant role in S&M scenarios” because of its “harsh and guttural sound”. People using a foreign language also “added to the sense of helplessness in having no control”. The judge also considered that words to the effect “we are the Aryan race—blondes” gasped by one of the women was nothing other than “a spontaneous squeal by Woman A in medias res”. Nor was there anything specific to the Nazi period or to concentration camps in any of the other activities, including Mr Mosley having his head examined for lice. In conclusion, the judge found no evidence of Nazi role play or of mocking victims of the Holocaust. He saw no significance in the fact that Mr Mosley had deleted email correspondence between him and one of the women. This had been done prior to the story appearing in the newspaper and Mr Mosley had no reason to suppose at that time that the News of the World was interested in his activities.
REASONABLE EXPECTATION OF PRIVACY
It was fairly obvious to the judge that the clandestine recording of sexual activity on private property engaged Article 8. He also considered that Woman E owed a duty of confidence to Mr Mosley as claimed. The judge noted that it was often said that “there is no confidence in iniquity”, but he considered it highly questionable whether, in modern society, that was a concept that could be applied to sexual activity, fetishist or otherwise, conducted between consenting adults in private. Indeed the rest of the women felt “utterly betrayed” and Woman E was to suffer the punishment of being ostracised from “the scene”.
Additionally, in light of the Strasbourg decision in ADT v UK  31 EHRR 33, the judge rejected a further submission to the effect that Mr Mosley had forfeited any expectation of privacy because, with so many participants, the party could not be regarded as private and the events were recorded on video.
The judge rejected the public interest defence on the basis that there was no evidence of criminality or, for the reasons discussed, a Nazi theme at the party to justify either the intrusion of secret filming or subsequent publication. There was no question of a sexual offence being committed since everything was consensual. The judge accepted that some of the activities were painful, “but in a nice way” (as Woman D proclaimed). The judge distinguished R v Brown  1 AC 212 upon which the defence sought to rely on the basis that that case involved cruelty and an altogether different order of activities that were extremely dangerous. Moreover, there was also the issue in R v Brown, which did not arise in the current case, that some very young people were victimised or corrupted. Additionally, there was no evidence that Mr Mosley was keeping a brothel. For premises to fall within the definition of a brothel it was necessary to show that more than one man resorted to them for whatever sexual services were on offer and the only man enjoying the activities in this case was Mr Mosley.
The judge also rejected the argument that the activities of the party were in themselves matters of legitimate journalistic investigation of public interest. Counsel for the newspaper described them as “immoral, depraved and to an extent adulterous”. The judge considered that even if they were, it by no means followed that they were matters of genuine public interest. Sexual conduct was a significant aspect of human life in respect of which people should be free to choose. That freedom was one of the matters that Article 8 protected. It was not for the state or for the media to expose sexual conduct that did not involve any significant breach of criminal law. It was important to ensure that where breaches occurred, remedies were not refused because an individual journalist or judge considered the conduct distasteful or contrary to moral or religious teaching. As the court said in CC v AB  EMLR 11, “judges need to be wary about giving the impression that they are ventilating, while affording or refusing legal redress, some personal moral or social views…”
The judge then went on to suggest that it could be argued as a matter of policy that allowance should be made for editorial judgement in arriving at a decision to publish material where that decision “falls within a range of reasonably possible conclusions”. In this respect, the judge considered that there was scope for paying regard to the concept of responsible journalism, which had been developed over recent years in the context of public interest privilege in libel and with which there was “an obvious analogy”. However, whilst the judge was prepared to accept that the journalists in this case, on the basis of what they had seen, actually thought there was a Nazi element, he considered that belief was not arrived at by rational analysis of the material before them. Essentially they had failed to consider the countervailing factors, in particular the absence of any specifically Nazi indicia. This willingness to believe in the Nazi element and the mocking of Holocaust victims was not, therefore, based on enquiries or analysis consistent with “responsible journalism”.
The judge ruled that exemplary damages were not admissible in a claim for infringement of privacy, since there was no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the tests of necessity and proportionality. Mr Mosley was nonetheless entitled to an adequate financial remedy for the purpose of acknowledging the infringement and compensating, to some extent, for injury to feelings, the embarrassment and distress caused. The judge said that no amount of damages could fully compensate Mr Mosley for the damage done. It was not, in the judge’s view, an exaggeration to say that “his life was ruined”. Taking into account that what could be achieved by a monetary award in such circumstances was limited and that any award must be proportionate and avoid the appearance of arbitrariness, the judge came to the conclusion that the right award was £60,000.
£60,000 for a life that is ruined? Should the media still feel aggrieved by this decision, perhaps they can take some comfort from the fact that if they do misjudge the extent of the licence given to them by their right to freedom of expression in relation to revealing private information about an individual’s sex life, they will not face huge financial penalties. Certainly none that are punitive. The press should, however, take on board what has been said in this case to assess their position in future disputes with a view to avoiding the disproportionate expense of defending a law suit. Nonetheless, some newspaper editors may well feel that the decision represents a significant restriction on what they believe is their right to expose behaviour that brings into question the suitability of an individual to perform a prominent role in society, whether political or as head of a multinational organisation whose ethos is one of fairness and moral propriety. The judge anticipated such criticism when he said at the end of his judgment: “Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged”. The point is, if Max Mosley had been goose stepping around in what was quite clearly a Nazi uniform, the News of the World may have had at least the basis of a public interest defence.