Mosley v United Kingdom – Lord Pannick’s Speech to the Court of Human Rights

Mr President, members of the Court:

The News of the World newspaper sells about 2.8 million copies on an average Sunday, and it is read by about 15% of the adult population of the United Kingdom.

It trades in buying and then selling the intimate sexual secrets of the rich and famous.

Very capable journalists, who no doubt dreamt at University of being a foreign correspondent in Paris, Bonn or Rome devote their working lives to destroying the private lives of those who have, or rather had, a personal, sexual secret the revelation of which will titillate the reader.

Why such journalistic intrusion into the sex lives of the victims should be so popular in the United Kingdom, when it is a phenomenon unknown in such intensity elsewhere in Europe, would require a psychological study.

But this is a court of law.

What is clear is the impact of this type of journalism.

It is plainly exposed in the case of Mr Max Mosley.

At about 10 o’clock in the morning on Sunday 30 March 2008, Mr Mosley was telephoned at home by the Director of Communications of the governing body of world motorsport, of which Mr Mosley was then the President.

Mr Mosley was told that there was an article about him on the front page of The News of the World that morning.

Mr Mosley was astonished.

He had received no prior notification of any such article.

He walked to the nearest shop and he bought a copy.

The front page headline stated : “Formula 1 Boss has sick Nazi Orgy with 5 hookers”.

I should mention that a High Court judge later held after hearing the evidence that the newspaper was factually wrong to allege that Mr Mosley’s private sexual activities involved any element of Nazi activity.

Pages 4 and 5 of the newspaper contained further details and photographs of Mr Mosley’s sex life, taken with a hidden camera.

With the development of technology, private life can no longer be guaranteed by closing the door and pulling the curtains shut.

Mr Mosley was, not surprisingly, shocked and horrified that the most intimate aspects of his private life were being revealed to the world.

He had the difficult task of telling his wife, who knew nothing of this aspect of her husband’s sex life, and who was devastated.

Mr Mosley sued The News of the World for breach of his privacy.

The High Court held that there was no public interest justification for exposing the private life of Mr Mosley.

The Judge, Mr Justice Eady, concluded at paragraph 236 of his Judgment that “no amount of damages can fully compensate the Claimant for the damage done. He is hardly exaggerating when he says that his life was ruined”.

The Judge awarded Mr Mosley damages of £60,000.

Mr Mosley contends in this Court that the United Kingdom breached his rights under Article 8 read with Article 13 because English law imposed no duty on the newspaper to notify him in advance of the publication so he could seek and obtain an injunction.

Mr Mosley’s complaint is very simple.

It can be summarised in 6 points :

The first point is that privacy, once breached, cannot be restored by court order.

Mr Mosley’s sex life is now and always will be in the public domain.

The maintenance of privacy depends on keeping the confidential material out of the public domain.

So the only effective remedy for an invasion of privacy is the grant of an injunction.

Mr Justice Eady made this point at paragraph 230 of his Judgment : he observed that reputation can be restored by the decision of the court in a libel action and the award of damages, but once embarrassing personal information has been released it cannot be recovered.

At paragraph 231 Mr Justice Eady stated that monetary compensation is therefore not an effective remedy for a breach of privacy.

This Court has recognised that the effective protection of personal privacy requires a proper opportunity to seek and obtain an injunction to prevent publication occurring in the first place.

I refer to this Court’s judgment in I v Finland, on 17 July 2008 at paragraphs 47-48, concerning the disclosure of the Applicant’s HIV status from a medical records database that was not adequately secure.

The second point is that if Mr Mosley had known that the News of the World was going to publish a story about his sex life, he would have applied for an injunction to prevent publication.

And an injunction would have been granted by the court.

There is and could be no dispute about that.

The third point is that the newspaper deliberately avoided putting the story to Mr Mosley for his comments prior to publication because it wanted to prevent him from applying for and obtaining an injunction.

Mr Justice Eady so found at paragraph 209 of his Judgment.

In 99% of cases prior notice is given to the subject of a newspaper story so his comments can be included.

That was the evidence given on 23 April 2009 to the House of Commons Culture, Media and Sport Parliamentary Select Committee by the Chairman of the Editor’s Code Committee of the Press Complaints Commission, Mr Paul Dacre, who is also the editor in-chief of the Daily Mail newspaper.

We have quoted this in our Written Response at paragraph 16.

Mr Dacre confirmed that the reason why prior notification is not given in the small percentage of remaining cases is the concern of the journalist that if notified, the subject of the story would apply for and obtain an injunction to prevent it being published.

As in the present case.

The fourth point is that the attitude of the News of the World is even more cynical because it knows that once the story is published, very few victims of a breach of privacy are going to sue for damages.

That is because you need to be a very determined as well as wealthy individual to go through the harrowing and expensive process of a High Court trial in which your own deeply embarrassing secret is re-heated for detailed assessment and cross-examination in public.

Mr Justice Eady so found at paragraph 230 of his Judgment.

I should add that even the £60,000 damages plus costs awarded to Mr Mosley did not cover the legal costs which Mr Mosley had to incur to bring the case.

Fifthly, it follows that whether the subject of the story is able to seek and obtain an effective remedy – an injunction – depends on the willingness of the defendant newspaper to notify him.

And of course the more flagrant the breach of privacy, and the more likely it is that the court would grant an injunction, the less willing the newspaper will be to notify the subject in advance.

So the newspaper which is deciding to breach privacy is also in the position of judging whether the administration of justice and the protection of human rights should be frustrated.

The wrongdoer is judge in its own cause.

Sixth, and finally, the newspaper has no valid reason in the present case for seeking to prevent the court hearing an application for an injunction to protect privacy.

The Human Rights Act fully protects the newspaper if notification is given and an injunction is sought.

Section 12 says that the court must have particular regard to the importance of the Convention right to freedom of expression and to the public interest in publication.

In all these circumstances, we contend that the United Kingdom has a positive obligation under Articles 8 and 13 to provide adequate procedures to secure effective remedies by way of an injunction for Mr Mosley and other victims of breaches of privacy.

The United Kingdom has failed in that duty because The News of the World has no obligation – enforceable by criminal or regulatory sanctions – to give prior notice to the subject of a publication which breaches privacy, no matter how flagrant and unjustifiable the breach of privacy may be, no matter how obvious it is to the newspaper that an injunction would be sought and obtained if only the subject of the article knew of its contents, indeed even if the newspaper decides not to tell the subject of the article in advance because the newspaper knows that the individual would then seek and obtain an injunction.

May I summarise our response to the written questions put by the Court and to the points made by the Government.

The first question was whether Mr Mosley can claim to be a “victim”, having regard to the award of £60,000 damages ?

The answer is Yes, because as I have submitted on behalf of Mr Mosley the only effective remedy to protect private life in this context is an injunction, and English law did not require the newspaper to give advance notification of the article and so Mr Mosley was prevented from seeking and obtaining an injunction.

As I have explained, and as the English courts have accepted, damages are not an adequate remedy because they do not enable Mr Mosley to preserve his privacy.

The Government suggest that Mr Mosley should have pursued a claim for exemplary damages, for an account of profits or for a remedy under the Data Protection Act.

The problem with all of these possible remedies is that they cannot restore Mr Mosley’s private life and they did not impose an obligation on the newspaper to give pre-publication notification.

In any event, Mr Justice Eady considered and rejected at paragraphs 172-211 the claim that exemplary damages are available in this context.

There is no basis for disputing his conclusion.

And in the circumstances of the present case, the evidence did not enable Mr Mosley to argue that there was a significant profit which could be shown to have resulted specifically from publication of the offending articles.

The Court’s second question is whether the Government have a positive obligation in this context.

The Grand Chamber stated in Cumpana v Romania on 17 December 2004 at paragraph 91, in the context of a publication covered by Article 10, that Article 8 “may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves”.

That principle was applied in by the Court in KU v Finland on 2 December 2008, the case about a child aged 12 who complained that he was the subject of a sexual advertisement placed on an internet website.

The Court stated at paragraph 43 that, in that context, the positive duty imposed under Article 8 in the sphere of the relations of individuals between themselves required the State to impose criminal sanctions.

For all the reasons I have given, the State has a positive duty in the present context to require prior notification – whether by criminal or regulatory sanctions – to ensure that there is an effective remedy for breaches of Article 8.

This Court has repeatedly stated that journalists are bound by the Convention to accept certain responsibilities, which include a proper level of respect for the rights of others as guaranteed by the Convention, particularly the right to privacy.

In Bladet Tromso and Stensaas v Norway on 20 May 1999, at paragraph 65, the Grand Chamber stated that the press should be protected under Article 10 only if “they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism”.

As I have mentioned, prior notification is given in 99% of cases.

It is impossible for the United Kingdom to dispute that prior notification is a requirement of responsible journalism which helps to ensure that only “accurate and reliable information” is published.

And it is clearly incompatible with the ethics of journalism for the newspaper to conceal the story until publication because it wants to prevent an application for injunction which would be granted by reason of a breach of Convention rights.

The Court then asks whether such a positive obligation, and the corresponding duty on newspapers and other media, would strike a correct balance between Article 8 and Article 10.

The answer is Yes, because a court would decide whether an injunction should be granted to prevent publication in breach of Article 8.

And the court would do so by properly balancing the Article 8 and Article 10 interests, as section 12 of the Human Rights Act requires.

Because the journalist had no duty to notify Mr Mosley in advance, the court was prevented from balancing freedom of speech and the right to private life.

The journalist was able to avoid his duties and responsibilities, and was the judge in his own cause.

That is no balance at all.

The final question posed by the Court is whether Mr Mosley had an effective remedy under Article 8 read with Article 13.

The answer is No, for all the reasons I have given.In the circumstances of the present case, only an injunction was an effective remedy to protect Mr Mosley’s privacy.

The margin of appreciation, relied on by the United Kingdom, provides no answer to the failure to impose any obligation to give pre-publication notification.

Mr Mosley’s complaint is not that he received some warning but not enough warning, or that the newspaper was obliged to give prior notification in some circumstances, but not in this case.

English law imposes no duty on the newspaper in this respect.

Our case is that domestic law must, at the very least, require the newspaper or other publisher to notify the Applicant so he has an effective remedy by way of an injunction to protect his privacy in those cases where the newspaper or other publisher knows – or ought to know because he is closing his eyes to what is obvious – that if informed of the publication the subject may apply for an injunction and may obtain one, and where the newspaper or other publisher has no good reason not to give prior notification, a fear that an injunction would be sought and obtained not being a good reason.

If the law did impose an obligation to notify the subject in such circumstances, that would plainly cover this case.

The United Kingdom has pointed out that there may be cases where the newspaper might have good reason not to give prior notification.

For example, because of the risk that the subject would destroy incriminating material or flee if given advance warning.

The United Kingdom may well decide that it is appropriate to include exceptions such as this in the legislation.

But that cannot affect the standard case, such as Mr Mosley’s, where no such factor applied and there is no suggestion of a legitimate reason for not notifying Mr Mosley in advance of publication.

The Government and the media interveners complain that there would be practical problems if a pre-publication notification duty were to be imposed.

The concern is greatly exaggerated.

As I have mentioned, the Head of the PCC Editorial Code Committee stated that the subject is contacted in advance of publication in 99% of cases.

The question of principle is whether the journalist should be able to decide unilaterally not to comply because, as in this case, he wishes to avoid an injunction to prevent a breach of Article 8.

The United Kingdom also relies on the fact that there is no uniform obligation across Contracting States requiring prior notification.

But in most Contracting States, the criminal or civil law protecting private life provides that consent is a necessary (or at least a crucial) ingredient of any justification for disclosing private facts about an individual.

The need to obtain consent before publishing can be lawful is a far more onerous requirement than a duty simply to notify in advance.  This may well explain why there is no need to impose an additional obligation on the media in other Contracting States to put the story to the individual prior to publication.

There is a second distinction between the United Kingdom and other jurisdictions. That is the uniquely intrusive nature of the tabloid press in the United Kingdom.

It is a curious paradox that in a society which has become increasingly tolerant on matters of sexual freedom, and has increasingly valued the right to personal privacy on sexual matters, the News of the World should, like the Taliban, insist on forcing its way into the bedrooms of consenting adults to humiliate and punish them, and frustrate the rule of law by preventing independent judges from protecting the right to private life.

For all these reasons, we invite the Court to declare this application admissible and to find that in the case of Mr Mosley, there has been a breach of Article 8 read with Article 13.

This was delivered at the hearing at the European Court of Human Rights on 11 June 2011.  A podcast of the hearing is available here – this must be viewed using Internet Explorer.