In the second part of this post Amber Melville-Brown concludes her round up of the current privacy state of play across the continent with particular reference to Max Mosley’s forthcoming Strasbourg case.

Pints of milk

There are clear differences in approach towards privacy in different European countries. The UK courts have not yet gone so far as Von Hannover in finding that images taken in public, short of some additional relevant factor, constitute an invasion of privacy. While in the case of Peck, images of a man clearly in distress, in the run up to his attempted suicide, captured on CCTV and broadcast to the nation, did invade his privacy, those of musician Elton John simply walking, casually dressed, from his Rolls Royce to his front gate, did not. The latter images were more akin to the example given by the UK House of Lords in Campbell of someone popping to the shops to buy a pint of milk and absent any special circumstances, there would be no reasonable expectation of privacy.

Off limits

But only a hop over the channel and that pint of milk would be off limits, according to Dominique Mondoloni, specialist media lawyer partner at the Paris office of US law firm Willkie Farr & Gallagher. In France, as in Italy, privacy law is recognised both in the civil and criminal codes. Mr Mondoloni comments that it is ‘quite rare that these things are prosecuted criminally’, but ‘the civil code is a straightforward statute. Everybody is entitled to respect for their private lives. Of course, there are obvious things that are private – your sexual behaviour, for example. But it is wider than that, and includes your vacations, what you eat, the way you put your underwear on, whether you put your socks or your trousers on first’. While those matters might appear entirely anodyne and not worthy of protection to judges in the UK, they are protected in France. ‘The things that you do that are not under public eye, are private’ Mr Mondoloni explains. No wonder, then, that Bloomberg New’s global media counsel, Charles Glasser, highlights France as one of the most troublesome countries he deals with. He relates having to remove what Bloomberg thought was an innocuous photograph from an archived story about the economy. ‘We had accompanied the piece with a long lens shot of a shopper coming out of Galeries Lafayette,’ he explains. ‘There was nothing intrusive or distressing about it and there was clearly a rational news relationship between the story and the image. But post Von Hannover, the shopper’s shopping was her business.’

The justification for what would otherwise be an invasion of privacy in France is the test of newsworthiness, akin to the public interest test in the UK and the debate of general interest of Von Hannover. Mr Mondoloni provides a hypothetical example, envisaging a member of parliament defending a bill in opposition to or supporting gay marriage and a story about him going to gay bars.

‘I am not sure that it would be considered newsworthy and justify the violation of his privacy simply because he goes to gay bars; that is really something that only concerns him. However, the fact that in his public position he is defending something that is contrary to what he personally believes in, that might be newsworthy.’

Hypocrisy arguments

This is not dissimilar to the hypocrisy argument run by MGN in the UK in Campbell. While the publication of the detail of model Naomi Campbell’s therapy at Narcotics Anonymous was an invasion of her privacy, the actual outing of her as a drug user was justified in the public interest; she had previously said that unlike other models, she did not take illegal drugs and, accordingly, the media was entitled to assert its article 10 right and publish this fact. On the proportionality test, the right to expose her hypocrisy in the public interest won the day. The Italian privacy code, says Iacopo Destri,

‘provides that the private sphere of prominent persons and persons holding public offices must be respected if the information or data are irrelevant to their role or public life.’

However, public interest can also prevail in this jurisdiction and Mr Destri tells of a recent case in which a politician had engaged in extra-marital transsexual relationships. ‘The fact itself is something that can be deemed as a private fact that cannot be spread by the newspapers’, he explains.

‘Nevertheless, the circumstance that has legitimated the great media exposure is the fact that [the politician] was blackmailed by Carabinieri agents, one of the most important Italian police forces, in respect of a video showing [him] spending  his time with a transsexual. The crime of blackmailing a politician carried out by public officers is something of public interest that can be legitimately disclosed by the media and, under such circumstances, the private deed involving [the politician] was a detail that had to be spread as well.’

There are occasions on which the public interest justification fails. One notable case in the UK was brought by Max Mosley, former president of motor sport’s worldwide governing body, the Federation Internationale de l’Automobile. That case is now speeding its way to Strasbourg, and may have significant repercussions across Europe. Mr Mosley was secretly filmed by one of five women with whom he was engaged in sexual activity in the basement of a private flat. That fact and images to illustrate it were published in British tabloid newspaper The News of the World and on its website, together with video images.  After an initial complaint resulted in the removal of the website material and an undertaking not to republish without 24 hours’ notice to his lawyers, notice was then given and the website material was reinstated. Mr Mosley applied to the court for an injunction to prevent any further publication, but failed; by the time he got to court 435,000 hits had been made on the on-line version of the article and the video footage had been viewed approximately 1.4 million  times. The judge found that the information had ‘lost its privacy to the extent that there is nothing left for the law to protect’.

Undeterred, Mr Mosley continued to fight the case at a full trial arguing that his sexual proclivities were a  private matter for him alone. The defendants argued that an alleged Nazi theme to the sexual role play justified exposure in the public interest of his hypocrisy on the grounds that Mr Mosley, whose father was the leader of the British Fascist Party, had openly distanced himself from those activities. The judge found no Nazi element had been present and without any hypocrisy to expose, the public interest argument fell away so that the publication of private, sexual matters between consenting adults in a private place could not be justified.

Not surprisingly considering the alleged Nazi element in the case, Ulrich Amelung, a media law specialist counsel at the Berlin office of US global law firm Hogan & Hartson, notes that the case was extensively reported in the German media. ‘Germany’s biggest tabloid Bild published screenshots from the secretly taped video on its front page’, he explains. As a result, Mr Mosley also sued in Germany, ‘but the case was settled out of court so, unfortunately, we do not have a court decision on this’. Nonetheless, Mr Amelung is confident that Mr Mosley would have been successful in his claims both for damages and for ‘cease and desist’. While the privacy invasion netted Mr Mosley £60,000 – the highest such award of privacy damages in the UK thus far – this did not satisfy the claimant who, not having had the chance to prevent the invasion of his privacy before it occurred, is on a mission to  change the law in the UK. This may significantly impact on privacy laws across all Europe’s contracting states.

Mr Mosley and his legal team argue that the absence of any requirement for the media to notify a subject in advance of publication of a potential violation of article 8 rights in itself constitutes a violation of those rights. Once the confidential cat was out of the bag in his case, it was too late for him to take any meaningful action to protect his convention rights. This, he argues, renders UK privacy law convention noncompliant.

Infringing free speech

Not surprisingly, media organisations argue that any such proviso would unjustifiably infringe their Article 10 right to free speech. A group of eight organisations have been given permission to intervene in the case.

The Media Legal Defence Initiative, Index on Censorship, the International Media Lawyers Association, the European Publishers’ Counsel, the Mass Media Defence Centre, the Romanian Helsinki Committee, the Bulgarian Access to Information Programme Foundation and Global Witness are being represented by London-based solicitor Mark Stephens, a media specialist partner at law firm Finers Stephens Innocent. Referring to the UK government as ‘generally recognised by the media as an enemy of free speech’, the submission on behalf of the eight organisations explains that it is

‘obviously unsatisfactory to have the main case against a new and unique restriction on the media argued by a party in which the media and civil society itself has no confidence, in written submissions that have not been shown to the media for comment and in oral submissions to which the media cannot reply’.

The concern is not only one of unworkability of the proposed rule – ‘it would be too complicated’, comments Mr Mondoloni – but that it would lead to an unnecessary delay in the publication of important news, ‘a very perishable commodity’ according to the interveners’ submission.  The submission continues:

‘Wherever the public figure would claim his psychological integrity was at stake from publication of the truth – for example, that he had sex with sheep, or did not pay his taxes, or practised black magic, or beat up his girlfriend or sold arms in breach of UN sanctions, the notice requirement would apply. That would lead to a stalling of the publication for 48 hours, the hiring of lawyers, an application to the court, another delay for an injunction, a further delay for a full hearing and the resultant legal costs. This, of course, is “the chilling effect” of a notice requirement; newspapers will not bother to publish newsworthy stories of genuine public importance for which they must give notice because they know that giving notice will trigger expensive attempts to stop the story’.

Narrow grounds

Advance notice is advisable in the UK where the publisher of an article likely to generate a libel complaint wishes to avail himself of the defence of public interest privilege. And that is also the case in Germany.  Explains Hogan & Hartson’s Ulrich Amelung: ‘There is a longstanding jurisprudence that the media is obliged to contact a person in advance of publication where the report concerns allegations that the person has committed a criminal offence’. Those are narrow grounds. Should the same principles apply to the publication of private facts? ‘I do not think that they should,’ responds Mr Amelung, ‘because the presumption of innocence does not apply here.’ Dominique Mondoloni agrees that this would be going ‘way too far’’, resulting in ‘an unjustified restriction to the free world press’.

Unless and until the Strasbourg court rules in Mr Mosley’s favour, the media is likely to continue to feed the public’s appetite for investigate articles that expose confidential information about the sordid sexual shenanigans of celebrities and the private proclivities of politicians. And of course, let’s not forget the fumblings of footballers, an almost unfailingly good source of bad behaviour.

In the UK, the former England football captain, John Terry, recently fell foul of the British tabloids by failing in his bid to  prevent coverage of his alleged extra-marital antics off the pitch, and in particular an away game he was allegedly playing with the former girlfriend of a club team mate. Intensely private information, but published nonetheless given the footballer’s failure to obtain injunctive relief.

Swinging pendulum

A decisive factor taken into account by the court was that the nub of the applicant’s complaint was to protect his reputation, in particular with his sponsors, rather than to protect his privacy. While the pendulum seems to have been swinging fairly healthily towards privacy protecting plaintiffs in the UK of late, this decision has been seen by media defendants as tilting the balance slightly back in their direction. Across Europe, various factions will continue to battle over where the privacy line is to be drawn. Some will consider the use of full body scanners at airports in the Netherlands and the UK as a justifiable protection of a country’s citizens against the terror threats; others see it as an unjustifiable  invasion of privacy.

Some consider the phenomenon of social networking sites an essential for modern living and exchange of information; others fear its insidious and invasive nature. Some applaud Google ‘street view’ for providing a useful service; others deplore the prying eye of its cameras.

In the UK case McKennitt v Ash, the Canadian folk singer Loreena McKennitt impressed the court with her explanation of how she had felt at the invasion of her privacy by disclosures made by a former friend in an unauthorised biography. Ms McKennitt said

‘she valued what privacy was left to her more and more as the demands of fame and publicity encroached upon her; [drawing] the analogy of an animal living within an ever diminishing area surrounded by deforestation’.

As our world gets smaller, with the advent of amazing yet alarming technologies for transmitting information to millions at the touch of a button, it is imperative that we continue to protect our right to privacy so that we don’t become creatures trapped in a goldfish bowl world of our own making. However, how we legislate for that protection and police our domestic legislation has to be finely balanced with free speech.

Prison terms

While the Italian courts have meted out a term of imprisonment for privacy invasion, even Dubai – in the news of late for imprisoning those found kissing in public – has turned away from imprisoning journalists who have published allegedly defamatory content in their assertions of their own free speech. It may be an uncomfortable thought, but perhaps the future of privacy law in Italy may be in the hands of the mighty US giant, Google, which has confirmed that it will ‘vigorously appeal this decision’.

The submission to the ECtHR on behalf of the eight interveners in the Mosley case, begins with a quote from Sir Melford Stevenson QC: ‘I believe that newsworthiness is a firm realisation of the fact that there’s nothing so much the average Englishman enjoys on a Sunday morning – particularly a Sunday morning – as to read a bit of dirt’. Given the newspapers, magazines and periodicals that regularly find themselves on the end of privacy complaints across Europe, and even ultimately in front of the ECtHR, it seems that the penchant is not dissimilar across mainland Europe.

Whether that will continue may well depend on the court’s decision in Mosley.

Amber Melville-Brown is a media law specialist counsel at London based law firm Withers

This piece first appeared in Issue 95 of the European Lawyer, April 2010 and is reproduced with permission and thanks.