[2012] E.M.L.R. 1 1 MOSLEY v UNITED KINGDOM European Court of Human Rights (Fourth Section) Application No.48009/08 Lech Garlicki (President), Nicolas Bratza, Ljiljana Mijović, David Thór Björgvinsson, Päivi Hirvelä, Ledi Bianku, Nebojša Vučinić, Judges: April 12, 2011 [2012] E.M.L.R. 1 Freedom of expression; Misuse of private information; Newspapers; Notification; Positive obligations; Publication; Right to respect for private and family life H1 Human rights—misuse of private information—freedom of expression—art.8 and art.10—interim injunction—failure of newspaper to give advance warning of intended publication of private information—whether government obliged by art.8 to require press to notify person affected of intention to publish private information—no violation of art.8. H2 The applicant was the subject of an article published on March 30, 2008 on the front page and several inside pages of the erstwhile tabloid newspaper, the News of the World. The article was headlined “F1 boss has sick Nazi orgy with 5 hookers” and began with the sentence “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. The article was illustrated with still photographs taken from video footage secretly recorded by one of the participants. Edited extracts from the video, together with still images, were published on the newspaper’s website and became available elsewhere on the internet. H3 On March 31, 2008, in response to a complaint from the applicant’s solicitors, the News of the World took down the edited video footage from its websites and gave an undertaking not to put it up again without 24 hours’ notice. The footage was viewed over 1.4 million times during the two days on which it was available on the News of the World website; the online version of the article was visited over 400,000 times during those two days; and the print version of the newspaper had an average circulation of three million copies. H4 On April 4, 2008 the applicant started legal proceedings against News Group Newspapers Ltd, the publishers of the News of the World. He claimed damages for breach of confidence and misuse of private information, and sought an injunction to restrain the News of the World from further publishing on its website the edited video footage. [2012] E.M.L.R., Part 1 © 2011 Thomson Reuters (Professional) UK Limited 2 Mosley v United Kingdom H5 On April 6, 2008 the News of the World published further articles on the applicant’s sexual activities. H6 On April 9, 2008 Eady J. refused to grant the applicant an interim injunction to restrain further publication of the video footage.1 Despite concluding that there was no legitimate public interest in further publication, and that the material was intrusive and demeaning, he held that it would be futile to grant an injunction restraining further publication of material which was now widely available on the internet. Soon afterwards, the edited footage was once more made available on the News of the World website. H7 On July 24, 2008, following the trial of the applicant’s claim, Eady J. awarded the applicant £60,000 damages for misuse of private information.2 H8 The applicant complained that the United Kingdom had violated its obligations under arts 8 and 13 of the Convention, by failing to impose a legal duty on the News of the World to notify him in advance of publication so that he had an opportunity to seek an interim injunction to prevent publication of material which violated his right to respect for his private life. H9 On the issue of admissibility, the Government argued that the applicant had obtained an adequate and proportionate remedy from the domestic courts. He had also recovered damages in other jurisdictions, and other proceedings were still outstanding, both in the United Kingdom and elsewhere. Moreover he had sought and obtained a high profile in the United Kingdom as a champion of privacy rights, and it was questionable whether the effect of the publication on him had been as detrimental to the applicant as he claimed. Moreover, he had failed to exhaust his domestic remedies, in that he had not appealed the judge’s refusal to award exemplary damages, he had sought damages rather than an account of profits, and he had failed to bring any proceedings under the Data Protection Act 1998, which would have enabled him to complain of the unauthorised processing of his personal data and to seek their rectification or destruction. H10 The applicant submitted that damages were not an adequate remedy where private and embarrassing personal facts and intimate photographs were so widely published: his privacy could not be restored by an award of damages. The only effective remedy would have been a pre-publication injunction, but that remedy had not been available to him because the News of the World did not notify him of their intention to publish. Proceedings in other jurisdictions had been aimed at requiring websites to remove personal information taken from the original publication by the News of the World, and demonstrated how persistent and damaging the breach of his privacy had been. Any suggestion that he had not suffered from the breach of his privacy was absurd and offensive, given the intimate nature of the material disclosed and the impact of publication on him and his family. As for the exhaustion of domestic remedies, the availability of additional remedies was irrelevant to his complaint, which concerned the lack of a law which would have enabled him to prevent publication. H11 On the substantive application, the applicant submitted that art.8 could give rise to a positive obligation on the State even in the relations between individuals; that the respondent had an obligation to enable him to apply for an injunction by requiring that he be notified before publication, since it was for the courts to resolve 1 [2008] EWHC 687 (QB) 2 [2008] EWHC 1777 (QB); [2008] E M L R 20 [2012] E.M.L.R., Part 1 © 2011 Thomson Reuters (Professional) UK Limited [2012] E.M.L.R. 1 3 conflict between art.8 and art.10, not for newspapers, which were hostile to privacy law, to act as sole judges of where the balance lay; and that where the resolution between art.8 and art.10 occurred only after publication there was insufficient protection for private life because privacy, once lost, could not be restored. That distinguished the law of privacy from the law of defamation, where it was possible to undo damage to reputation by proving the falsity of the allegations. Further, he argued that the Human Rights Act 1998 s.12 provided significant protection for newspapers’ freedom of expression by setting a high threshold before an interim injunction could be granted. There was a margin of appreciation, but this related only to the scope or efficacy of any requirement to notify about a pending article: his complaint was that there was no requirement to notify. He relied on the “unique nature” of the British tabloid press, both in terms of the unlawful actions of some tabloid reporters and of the hostility of the tabloid press to the developing law of privacy. Any difficulties in setting up a system of notification were exaggerated: an obligation should arise where there were reasonable grounds to believe that the proposed publication would infringe the right to respect for family life, having regard to all the circumstances including any public interest defence. There would have to be a provision that there would be no sanction if all practicable steps had been taken to notify or there were compelling reasons not to do so. Where sanctions were appropriate, they should be criminal or regulatory. H12 The Government argued that a high threshold had to be crossed before art.8 could be engaged in the manner contended for. Relevant factors in determining the extent of any positive duty were the extent to which fundamental and essential aspects of private life were in issue, the prejudice suffered by the applicant, the breadth and clarity of the positive obligation to be imposed, and the extent of consensus in the Council of Europe or internationally. If, contrary to their argument, there was a positive obligation, there was a sufficient margin of appreciation to enable the Government to decide where in domestic law the balance between art.8 and art.10 should be struck. Moreover, there was a consistent pattern of opposition in Council of Europe states to notification, and an insistence on compulsory notification would depart from internationally accepted standards. The important role of the Press Complaints Commission and the Editors’ Code of Practice was relevant, as was the refusal of the House of Commons Culture, Media and Sport Committee to recommend a legal requirement of notification. Finally, a legal requirement would raise difficulties in formulating the scope of the obligation and the operation of a public interest exception, especially where criminal sanctions were contemplated. The framework of legal regulation in the United Kingdom was therefore sufficient to comply with any positive obligations which arose. H13 There were also third party written submissions opposing the application. H14 Held, by the Fourth Section, declaring the application admissible but holding unanimously that there had been no violation of art.8 of the Convention. H15 In the light of the unusual nature of his complaint, the applicant could claim to be a victim, and because none of the other remedies suggested by the Government addressed his specific complaint, they were not remedies which he was bound to exhaust. The application was therefore admissible.