Landmark Privacy Judgment Leads To Biggest Privacy Award In English Legal History And Clarifies The Boundaries Of Press Freedom And Personal Privacy

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...