Max Mosley has won his claim against the News of the World (NoW) for infringement of his right to privacy as a result of an article and pictures the NoW published alleging that Mr Mosley had taken part in sadomasochistic sexual activity with a Nazi theme.

Mr Mosley’s claim invoked both his right to privacy under Article 8 of the European Convention on Human Rights (ECHR) and the right of the NoW to freedom of expression under Article 10 ECHR. Therefore, in order to decide which right should take precedence Mr Justice Eady was required to carry out a balancing exercise involving the analysis of the relative importance of the two rights.

Mr Justice Eady first examined Mr Mosley’s right to privacy and confirmed that it is normally safe to assume that:

anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults (paid or unpaid).”

The only permitted exception to this general principle is where there is a strong enough countervailing public interest to outweigh an individual’s freedom to conduct his sex life and personal relationships as he wishes. The fact that an act may be illegal or immoral would not automatically provide sufficient justification. In deciding that there was not such sufficient public interest to render the NoW article or the secret filming that led to it necessary or proportionate, Mr Justice Eady scathingly commented that:

Obviously, titillation for its own sake could never be justified. Yet it is reasonable to suppose that it was this which led so many thousands of people to accept the News of the World's invitation on 30 March to "See the shocking video at notw.co.uk". It would be quite unrealistic to think that these visits were prompted by a desire to participate in a "debate of general interest"

The High Court awarded Mr Mosley £60,000, which is the highest award of damages for breach of privacy ever granted by an English court. However, Mr Mosley’s claim for substantial exemplary damages as a result of the conduct of the NoW was rejected. It was held that this remedy was not available in connection with an infringement of privacy claim, Mr Justice Eady commenting that he was not satisfied that English law requires that the media:

be exposed to the somewhat unpredictable risk of being "fined" on a quasi-criminal basis. There is no "pressing social need" for this. The "chilling effect" would be obvious.”

Although this aspect of the decision provides some comfort for those concerned that the decision could erode press freedom, other comments make more sobering reading. Mr Justice Eady conceded that if NoW had been able to substantiate their allegations of a Nazi element to the sadomasochistic activity, there may be a genuine public interest in their publishing the allegations, at least for the FIA (the body of which Mr Mosley is the President). However, this allegation was not upheld. In fact, Mr Justice Eady characterised the conduct of the relevant journalists in concluding from the available evidence that there was a Nazi element as “casual” and “cavalier”. He further held that their willingness:

to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with "responsible journalism".”

It remains to be seen whether claimants such as Mr Mosley will in future prefer to launch proceedings for infringement of privacy rather than libel. Perhaps this is unlikely since it seems fairly clear that infringement of privacy damages will not reach the level of those in libel claims. However, Mr Mosley has now indicated that he intends to pursue a further action in libel against the NoW so perhaps both weapons will in the future be deployed together by litigants.

What seems fairly certain is that newspaper editors will now feel less secure in relying on a “general interest” type of defence in this kind of situation, particularly given Mr Justice Eady’s statement that this is a very high test to satisfy. Mr Justice Eady further speculated that the development of this doctrine in relation to photography in public places, if taken literally:

would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years