Ashfords Solicitors - Is Privacy Law Now Public Enemy No 1?

Mr Justice Eady found that the News of the World had failed to establish that there was a Nazi theme to the session and that Mr Mosley "had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property." He decided that there was no public interest in or justification for the newspaper's clandestine recording of the session and its publication "on a massive scale", including video extracts on the newspaper's website. He rejected Mr Mosley's claim for "exemplary damages" and awarded him damages of £60,000, which is a record for a privacy case but arguably conservative given the extent of the intrusion.

The Max Mosley claim was brought under Article 8 of the Convention on Human Rights which was adopted into U.K. law by the Human rights Act which came into effect in 2000. Article 8 guarantees an individual's right to privacy in his "private and family life, his home and his correspondence." In applying this law a balance has to be struck with the competing right in Article 10 of the same Convention to freedom of expression. Because Parliament has steered clear of legislating any further on the subject to indicate how it expects the law of privacy to be applied in practice, it has been left to the Court to attempt to define the boundaries of permissible press and other media intrusion into individuals' private lives. Inevitably this means that the law of privacy has been developed, not by Parliament, but by a select number of specialist High Court Judges deciding individual cases. The difficulty of advising clients in this area is, of course, that no two sets of circumstances are the same and the outcome of an individual case will often turn on its own particular facts.

Because few individuals can afford to litigate in this area (the legal costs in the Mosley case are rumoured to have exceeded £1m), development of this new law of privacy has been by way of much publicised Court battles between well heeled celebrities and tabloid newspapers with deep pockets. In 2004 the House of Lords decided that the Daily Mirror had been wrong to publish pictures of Naomi Campbell leaving a drug rehabilitation session. Princess Caroline of Monaco brought a successful claim in the German Courts which established that taking pictures of her going about her daily life shopping amounted to an unwarranted intrusion into her private life. In May this year J.K. Rowling, author of the Harry Potter books, successfully brought a case, which was settled out of court, with her husband against Express Newspapers following the publication of a photograph of their 19 month old son being pushed in a buggy in a street in Edinburgh. In a related application brought by the photo agency concerned, Lord Justice Clarke found in the Court of Appeal that it was arguable that, "if a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the children of a famous parent."

There is no doubt that developing case law has pushed the boundaries of privacy well into traditional tabloid "kiss and tell" territory. The danger is, however, that the law may be used to stifle what many would see as legitimate media investigation into the behaviour, not just of celebrities, but of individuals in responsible positions or public life. For example, if a school head teacher had been behaving in the same way as Mr Mosley, in the teacher's own time and off school premises, would a newspaper be justified in exposing this behaviour? I am sure many parents would think so and that they were entitled to know but the judgment in the Mosley case would almost certainly leave it open to the teacher to argue that the revelation infringed privacy rights and that his sex life was private. A further actual example might be the situation of John Prescott who in 2006 when Deputy Prime Minister was exposed as having had an affair with his secretary. This fact was revealed following media investigation but the question remains whether, as the law has now developed, that exposure would be held to have been an unjustified invasion of Mr Prescott's right to privacy in respect of his private life. The problem is that the Mosley case, decided in relation to a set of fairly bizarre and extreme facts, sets a precedent for concern that the sex life of any public figure is a no-go area for journalists. It may be that Mr Mosley regards these activities as "perfectly harmless", as he stated in Court. However, there will be many members of the public, including motorsport fans, who will be morally outraged by the disclosure of this behaviour and slightly puzzled why the Court has decided that they did not have the right to be informed about it in relation to a public figure.

There is an additional attraction to Claimants of bringing a claim in privacy. It may in an appropriate case be much more straightforward to establish that there has been a breach of privacy rather than to try to establish defamation/libel. This follows particularly a House of Lords decision in 1998 in Reynolds v Times Newspapers which made it clear that the Courts would defend investigative journalism responsibly carried out. Further, in recent years the Courts have severely reined back the level of damages awarded for libel. In the Mosley case, whilst the claim for "exemplary" or "punitive damages" to reflect the conduct of the News of the World investigation was rejected by the Judge, the award of £60,000 sets a precedent which compares very favourably with the current level of libel awards.

Whilst, in this judgment, the High Court has sent out a clear warning to the media about what will and will not be allowed in terms of reporting upon an individual's private life, there still remains uncertainty and it would be surprising if there were no attempt to appeal this decision. If that occurs, the implications of the case will have to be reassessed in the light of any Court of Appeal or House of Lords decisions.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

29th July 2008

Key Contacts

Is Privacy Law Now Public Enemy No 1?

Introduction