High Court awards damages for infringement of privacy

United Kingdom

Mosley v News Group Newspapers Ltd

On 24 July, the High Court found that the clandestine recording of sexual activity on private property was an infringement of privacy. However, although the case raises no new legal principles, it helps to underline the now established two-phase test for “misuse of private information”:

(i) is there a reasonable expectation of privacy in the information;
and, if so,
(ii) is there is overriding public interest that justifies the publication of the information (and engages the right to freedom of expression under Article 10 of the Human Rights Act

At first glance, this case appears to have little to do with corporate privacy rights (although high profile individuals will no doubt draw comfort that “kiss and tell” stories may breach their right to privacy). However, many of the same principles will apply to corporates looking to protect their privacy.

The claimant Max Mosley, the head of Formula 1 Motor Racing, brought proceedings against the defendant, seeking exemplary damages for the alleged breach of his rights under Article 8 Human Rights Act. He complained about two articles and accompanying images in the defendant’s newspaper, the News of the World, referring to him taking part in a “sick Nazi orgy with five hookers”. Mosley brought an additional complaint over the same information and images on the newspaper’s website, which also contained video footage. He denied that there was any Nazi theme and argued that there was a pre-existing relationship of confidentiality between the participants, one of whom breached that confidentiality by going to the News of the World and secretly filming what took place during the meeting with Mosley.

By reference to the two-stage test for misuse of confidential information, the Court found that:

1. Reasonable expectation of privacy

Max Mosley had a reasonable expectation of privacy because the information was intrinsically confidential; the European Court of Human Rights has made it clear that information about sexual activity between adults on private property engages the right to privacy under Article 8. The fact that Mr Mosley was paying the women did not prevent the information from being confidential.

2. Public interest

The News of the World claimed that there was a public interest in disclosing the information on a number of grounds: 1) there was criminal activity; however, the judge made it clear that existence of criminal activity did not necessary override the right to privacy, 2). the alleged Nazi theme; however, the judge found no evidence for this, 3) the information showed immoral and depraved behaviour; however, the judge found that the News of World could not undermine Mr Mosley’s right to privacy simply on the grounds of taste/moral disapproval.

The judge therefore found that that there was no public interest sufficient in the story to override Mr Mosley’s right to privacy. The claimant was awarded record damages of £60,000. The judge refused to award exemplary damages on the basis that there was no existing statutory or common law authority to justify them and such an award would likely fail the tests of necessity and proportionality under Human Rights Convention jurisprudence.

At first glance, this case appears to have little to do with corporate privacy rights (although high profile individuals will no doubt draw comfort that “kiss and tell” stories may breach their right to privacy). However, many of the same principles will apply to corporates looking to protect their privacy; where the subject matter of a publication or broadcast is of a confidential nature, and there is no overriding “public interest” in disclosing that information, the courts will protect the privacy of a company along the same lines as it does for individuals such as Mr Mosley.