You may have recently read about FIA boss Max Mosley's Court victory against the News of the World. Whilst Mr Mosley's decision to engage in a public trial about an article concerning his private sexual activities might be viewed as surprising, it afforded the English Courts a further opportunity to entrench the 'new' cause of action of mis-use of private information into our law. The judgment of Mr Justice Eady was said (by himself) not to be landmark but in one respect it undoubtedly was: Mr Mosley was awarded an unprecedented £60,000 damages.

Private nature of sexual conduct

Subject to any appeals, Max Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB) confirms that details of legal sexual conduct taking place on private property constitutes information about which there is a reasonable expectation of privacy. It is not to be revealed by others unless there is some public interest justification for the personal conduct to be exposed which is not based on morals or taste.

In this case, the Judge also found that there was an old-fashioned duty of confidence owed by the woman (Woman E) who had betrayed Mr Mosley to the News of the World, and who had worn the camera used to secretly record the "S and M" party at the centre of the scandal. This duty arose despite the fact Mr Mosley was paying the woman to take part.

Public interest and proportionality

The Judge applied the required "intense focus" to the particular facts of this case in order to assess whether there was some countervailing consideration of public interest which could justify the intrusion which had taken place. In doing so, he warned against making broad generalisations such as "People in positions of responsibility must be seen as 'role models' and set us all an example of how to live upstanding lives". Every case depends on the particular circumstances and the ultimate question is whether the degree of intrusion was proportionate to the public interest supposedly being served by it. 

The main argument raised by the News of the World to justify its publication of the articles, which included photographs, and a video on the internet was that the sado-masochistic party had had a Nazi theme. The Judge went through the evidence on this in detail. The News of the World suffered a blow when Woman E did not give evidence that Mr Mosley had ordered there to be a Nazi or concentration camp theme, as had been expected. The Judge was critical of inconsistencies in the journalist's evidence and found that it would not be safe to place unqualified reliance on his evidence on this issue.

After analysing all the evidence, the Judge concluded that there was no evidence of imitating, adopting or approving Nazi behaviour or of mocking the humiliating way Jews had been treated in concentration camps. There was no legitimate public interest to justify either the intrusion of the secret filming or the subsequent publication. The Judge did say that if he had come to a different conclusion ie, that there was such evidence, there could have been a public interest in that being revealed at least to those in the FIA to whom Mr Mosley was accountable.

An alternative public interest argument raised by the News of the World was that the sado-masochistic behaviour was immoral, depraved and adulterous. The Judge said that the fact that a particular relationship happens to be adulterous, or that someone's tastes are unconventional or "perverted" does not give the media carte blanche: the private sexual conduct of adults is essentially no-one else's business.

Damages

The other novel aspect of this case was Mr Mosley's attempt to claim exemplary damages. This type of award can only be made in circumstances where an element of punishment is thought appropriate by the Court and the amount to be awarded by way of compensation (including aggravated damages) is not sufficient to satisfy this punitive function. The Judge ruled that it was not possible to claim exemplary damages for infringement of privacy. Even if it was, the necessary ingredients to establish such a claim had not been proved in this case.

The purpose of compensatory damages in privacy cases is to protect matters such as personal dignity, autonomy and integrity. The Judge thought it appropriate to take into account distress, hurt feelings and loss of dignity and also vindication to mark the infringement of a right. It is legitimate to pay attention to the current levels of personal injury awards to maintain a sense of proportion, which is the approach taken in defamation cases. Aggravating factors and the claimant's own conduct also need to be taken into account.

The Judge's conclusion on damages was that an infringement of privacy cannot ever be effectively compensated by a monetary award. The "only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party". The Judge awarded Mr Mosley £60,000. Before this, privacy damages awarded at trial had been around £3,500-£5,000. Clearly, this is a huge step forwards in terms of incentivising claimants to pursue such claims.

Costs – a word of warning

The Judge ordered the News of the World to pay all of Mr Mosley's costs, including those of the failed injunction application he made to prevent publication at the time the story broke. With the total costs of this case reported to be around £850,000, it is clear that, in the absence of a strong public interest justification, tabloids and their journalists (or anyone else) must desist from the stories about public figures' private lives that they love to print.