Yesterday, the final salvoes in the protracted legal battle over the tabloid exposure of Max Mosely’s romp with five prostitutes were fired at the Human Rights Court in Strasbourg. The outcome will determine whether there is a structural failure in the UK law which will be corrected if the press have to notify an individual under investigation, if details about that individual are about to appear on the front pages. This Blog reports on some of the arguments raised by both parties of the dispute (Application no. 48009/08, Mosley v the UK – see references)
Facts of the case
On 30 March 2008, the News of the World (NoW), published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert” and several pages inside the newspaper were also devoted to the story. This included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities. An edited extract of the video as well as still images were also published on the newspaper’s website and reproduced elsewhere on the internet.
The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies. On 6 April 2008, a second series of articles on the applicant’s sexual activities was published in the News of the World.
The Nazi element was included in the NoW headlines as Mosley is the son of Oswald Mosely, leader of the UK facist blackshirts in the 1930s. The Newspaper ran headlines such as “SECRET TAPES REVEAL VILE MOSLEY’S TRUE DEPRAVITY”, “MOSLEY’S TWISTED NAZI-STYLE RANT AT HOOKERS” and “Sick games WERE like death camps. However, it transpired in the UK Courts that newspaper staff did not check any speech for Nazi content and “the German was not even translated”. The Newspaper’s justification of the public interest, based on the Nazi dimension, thus collapsed.
That is why in the UK, the Court concluded that the newspaper articles and images constituted a breach of the applicant’s right to privacy. The judgment found that as there were no Nazi connotations in the applicant’s sexual activities, that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images. Max Mosely was awarded costs and £60,000 damages.
The issues before the ECHR
The central issue before the European Court of Human Rights was identified by Eady J. in his UK judgement – compensation cannot compensate for embarrassment or humiliation.
“..Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action... (para 230)
In other words:
1. Given this state of affairs, should the NoW have contacted Max Mosely prior to publication to alert him to the fact of publication, knowing that Mosely would probably successfully apply for an injunction preventing publication?
2. If this is the case, has the UK a legal framework that allows the proper protection of the Article 8 right to a private life?
3. In order to protect that right, should the law require the press to make contact with those who are about to be prominently featured in a publication?
Eady J, also summarised the public interest arguments proffered by the NoW. For instance, he wrote in relation to the photographs published by the NoW:
“ ... A relevant consideration here is whether there is a public interest in revealing the material which is powerful enough to override Mr Mosley’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs. I have little difficulty in answering that question in the negative. The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants...”
Commentary on the submissions
The UK Government’s position was that there is no need for a change in the law to require prior notification. This was based on the fact that the majority of European Countries did not have laws that required such contact, and for the Court to require this step would have wide ramifications far beyond the UK. If a law was enacted, there would be a host of unintended consequences.
For instance – what is a publication? If the Hawktalk blog reported the rumour that “David Beckham was to join Barnsley FC” – would I have to contact Beckham even though it is obvious that he would be delighted with the news? And what about Wikileaks – should they have contacted all USA diplomats before publishing those leaked Ambassadorial communications? How does one frame a law that works – for instance, what happens if contact is attempted and fails – can publication go ahead? Should there be an offence of failure to make contact?
Because of these practical issues, the UK argued that the matter was best left to the “margin of appreciation”, as national states know how its media and law operate in tandom. For instance, the media in the UK has a vibrant tabloid component which differs from other European States. Leaving it to Member States would also ensure that there would be no “chilling” effect on investigative journalism.
Finally, the UK picked up on evidence from the Editor of the Daily Mail who told a Parliamentary Committee that in 99% of cases “you should inform somebody that you are going to write an article about them before you publish it?”. If UK practice was 99% effective, it was then argued that there was no need for a change in the law to cover the rare 1% of cases. After all, hard cases make bad law.
The Counsel for Max Mosely put another gloss on this 99% statistic. He stated that if this was 99% of the practice, then there was no harm in taking a small step to make it a legal requirement for all cases.
Evidence supporting this view was found in the OFCOM code which required “Broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes”. In amplification of this requirement, the Code states that “Before broadcasting a factual programme.... anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute” (para 7.9 of the Code). In other words, if Broadcasters had to make contact with those who were featured in its investigations, so should the press.
Finally, in the 1% of cases where there was no contact with the target of an investigation, it was the Newspaper that was deciding that this was the appropriate step. This put the newspaper’s interests in the position of the judge (removing the decision about an injunction) and denied the individual the chance of obtaining injunctive relief.
The Counsel invoked the ECHR’s previous ruling in the case of I v Finland, and its obligation on the state to give real effect to Article 8 rights. As a result, the specific obligation to make contact with the target of an investigation was the only way of protecting the subject when the investigation was of the kind suffered by Max Mosely.
The Data Protection Act
I was surprised that the counsel for the UK argued that the DPA offers an effective remedy for Mr Mosely, in that he could require the deletion of personal data from various websites.
I am not so sure it does. The reason for this is that when Section 32 exemption was framed, it was intended by Government that the exemption fell away when the personal data was published – that is clear from the Parliamentary record. However, in the Naomi Campbell case, the Appeal Court (Lord Philips at para 189) concluded that Section 32 was of general application. This means the exemption applies after publication - and if so, there is no remedy for Mr. Mosely.
Conclusion – what do I think will happen?
This is a difficult one – it is too close to call. What I can say, is that if the end result is an obligation to inform individuals of an investigation, I can see how it have a chilling effect on investigative journalism dealing with fraud or malpractice. For that reason, I think the ECHR could avoid making a precise ruling that gives Mr. Mosely what he wants.
But if the ECHR goes down this route, it would not be the Human Rights regime that has caused the problem. It is that investigative journalism has been used by many national newspapers, not to reveal malfeasance, but reveal matters in order to titillate their readership.
1. 90 minute recording of the public hearing before the ECHR – highly recommended (http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts+of+public+hearings/webcastEN_media?&p_url=20110111-1/en/)
2. The 99% figure is at Q594 of House of Commons, Culture, Media and Sport Committee Report into "Press standards, privacy and libel", Second Report, Session 2009–10, vol II.
3. The Ofcom Broadcasting Code (December 2010) is on its web-site
4. The UK Court decision before Eady J, Max Mosley and News Group Newspapers Limited  EWHC 1777 (QB)
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