FOURTH SECTION
DECISION
Application no. 72497/17
MGN LIMITED
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 20 September 2022 as a Chamber composed of:
Gabriele Kucsko-Stadlmayer, President,
Tim Eicke,
Faris Vehabović,
Iulia Antoanella Motoc,
Armen Harutyunyan,
Pere Pastor Vilanova,
Jolien Schukking, Judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above application lodged on 29 September 2017,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, MGN Limited, is the publisher of three newspapers in the United Kingdom known as The Daily Mirror, The Sunday Mirror and The People. It is represented before the Court by Mr K. Mathieson of RPC LLP and Mr M. Partington, lawyers practising in London.
2. The Government of the United Kingdom (“the Government”) are represented by their Agent, Mr M. Boulton of the Foreign, Commonwealth and Development Office.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
Background4. In the 2000s it came to light that a number of newspapers in the United Kingdom had been engaging in “phone hacking” (primarily the interception of voicemail messages) and other unethical practices. The ensuing investigations resulted, inter alia, in the closure of a tabloid newspaper and the conviction of its editor for conspiracy to hack telephones.
5. On 13 July 2011 the then Prime Minister announced that a public inquiry would take place (“the Leveson Inquiry”, named after its Chairman, Lord Justice Leveson) to address, inter alia, the culture, practices and ethics of the press. The first report was published in November 2012. Insofar as relevant, it noted that:
“An overarching complaint which encompasses many of the individual cases set out below is that the press has failed always to treat individuals with common decency, and has failed always to respect individual privacy. This encompasses many of the unethical techniques complained of, including phone hacking, surveillance, blagging and harassment. It is also exemplified by complaints relating to the publication of private and/or sensitive material without any public interest justification, and the intrusion into grief or shock.
...
While phone hacking itself is a ‘silent crime’ inasmuch as the victim will usually be unaware of, or not even suspect, the covert assault on his or her privacy, its consequences – both direct and indirect – have often been serious and wide-ranging, as the evidence submitted to the Inquiry and separately generated by the phone hacking litigation has demonstrated.
The Inquiry has heard how the details of private lives, known only to the witnesses testifying (in other words, the targets of voicemail hacking) and their most trusted confidants and friends, became the subject of articles in the press. Further, evidence was also received that, as a consequence of voicemail hacking, journalists and press photographers were able to record moments that were intensely private, such as relationship breakdown, or family grief, without either the knowledge or input of the individuals concerned.
... Other witnesses have told the Inquiry how they have lost friends and confidants as a consequence of the paranoia and mistrust engendered by phone-hacking.”
The privacy proceedings6. A large number of cases were brought against the applicant by persons in the public eye (such as actors, sportsmen, or associates of such people) alleging that they had been the victims of an invasion of privacy in the form of phone hacking. In particular, they claimed that persons acting for or on behalf of the applicant had unlawfully listened to voicemails on mobile phones, and engaged in “blagging” (that is, masquerading as the individuals concerned or as other people legitimately entitled to obtain telephone call data). Information obtained by these illicit methods was then published in the applicant’s newspapers. Fifteen such cases settled before trial with agreed orders for costs. Eight cases were taken to trial. However, in the course of the proceedings the applicant conceded liability save that it was not conceded that a handful of articles were published as a result of phone hacking. In particular, the following concessions were made:
As a result of voicemail interception and/or the blagging of call or other data, the applicant obtained mobile telephone numbers and other telephone account data.Mobile telephone numbers were obtained from journalists, mobile telephone companies (by blagging), from blagging carried out by private investigators and the interception of voicemail messages.The admissions of Mr E (a former Sunday Mirror journalist) in various police interviews and statements were true, including his modus operandi. These included admissions about: the use and periodic destruction of pay as you go mobile phones by journalists to avoid detection; and that voicemail interception and blagging were frequently carried out, including using pay as you go mobile phones.The information obtained from the unlawful activities was information that the applicant was unlikely to have been able to obtain lawfully.The call data disclosed by the applicant showed that voicemail was intercepted “on a regular basis”.It is likely that further voicemail interception was carried out using pay as you go mobile phones.In relation to the articles that were then pleaded, which was most of the articles in play at the trial, but for the wrongfully obtained information the articles would not have been published.7. In their evidence to the court, the claimants told of their horror, distaste and distress at the discovery that the applicant’s journalists had been listening, on a regular and frequent basis, to all sorts of aspects of their private lives. Their use of voicemail was such that many aspects of their personal, medical and professional lives were, to a very significant degree, laid bare in the voicemails they left and in the voicemails they received.
8. On 21 May 2015 judgment was delivered in favour of the claimants (Gulati and Others v. MGN Limited [2015] EWHC 1482 (Ch)). The judge made the following comments:
“This is a claim based fundamentally on infringements of privacy rights. ... In all cases the infringements of privacy rights were founded in what has become known as phone hacking, though there are also claims that confidential or private information was also obtained in other ways (principally from private investigators). In all cases except [Mr Y’s] there is also a claim that infringements of privacy rights led to the publication of articles in the various newspapers just described, which articles were themselves said to be an invasion of privacy rights and which would not have been published but for the earlier invasions which provided material for them.
...
[Phone hacking] proved to be a very useful source of information for the newspapers involved in this case. Once into a user’s voice mailbox, a journalist could listen to messages left there and often find out the numbers of the people who left them. The content of the message might itself be of significance, as might the identity of the person who left it. Furthermore, the number of the person who left it could also be ascertained, and if it was a mobile number an attempt could be made to hack into that user’s voicemail as well. In that way a pattern of sources of information could be built up. Mr [E], the principal witness about the actual hacking activities in the case, described this extended activity as ‘farming’.
...
All of the claimants in this litigation, except [Mr Y], make claims which are similar in their nature, though their particular details vary. They all claim that MGN journalists hacked their phones as described above so as to listen to voice messages left by others. Those journalists also listened to the voicemail messages left by the claimants on the phones of others. In that way the journalists became privy to private information about the personal affairs of the claimants, and were able to write stories and publish photographs that the newspapers would not otherwise have been able to publish, either because they did not have the information absent the voicemail messages, or because messages enabled information obtained from elsewhere to be filled in, or stories to be ‘stood up’ (corroborated) by phone messages. In addition, most of them claim that private information was obtained from private investigators employed by the newspapers to find out that information. Mr [E] gave evidence about this, and his unchallenged evidence was that among the information that private investigators were charged with finding were telephone numbers of targets (so that they could be hacked), the owners of given telephone numbers (‘spinning’), call histories (phone bills, or extracts from them) from which the identity of telephone numbers called by the victims could be ascertained, credit card details (useful for establishing how and where money was spent) and some medical information. ... The information obtained by these investigators is likely to have been obtained by techniques including ‘blagging’ - the process of obtaining information from the person holding it by deception, including wrongfully claiming to be the person entitled to it or otherwise convincing the holder to part with it by some form of pretence.
Thus the claimants make claims which are said to fall into three main categories - wrongfully listening to private or confidential information left for or by the claimant, wrongfully obtaining private information via private investigators, and the publication of stories based on that information. MGN admits all those activities (but not the extent of the first two) and accepts that damages are payable as a result, but does not accept that those three ‘layers’ should be treated as separate compensatable matters when it comes to assessing damages.
...
Mr [Y’s] case is different from the other claimants in that it does not have one of those layers. While there was evidence of a lot of hacking directed at him, no stories were published about him as a result. It is likely that the information left for and by him was used to investigate other individuals of more interest to the newspapers.
The cases of the other claimants do not depend exclusively on articles published about them. They also rely on phone hacking which did not result in articles (as does Mr [Y] – that is the essence of his claim).”
9. Substantial awards of damages were made to reflect the severity and prolonged nature of the invasion of the claimants’ privacy. According to the judge:
“None of the articles in respect of which I have awarded compensation would (on the admitted case) have been published had it not been for the underlying prolonged phone hacking that went on, which was known to be wrongful. That hacking existed in all cases whether or not an article resulted. The length, degree and frequency of all this conduct explains why the sums I have awarded are so much greater than historical awards. People whose private voicemail messages were hacked so often and for so long, and had very significant parts of their private lives exposed, and then reported on, are entitled to significant compensation.”
10. The Court of Appeal dismissed the applicant’s appeal (see Gulati and Others v. MGN Limited [2017] QB 149).
11. Each of the twenty-three claimants had the benefit of a conditional fee arrangement (“CFA”), and all but one had taken out “after the event” (“ATE”) insurance to underwrite their liability to pay the applicant’s costs should their cases be unsuccessful. At the time of the domestic proceedings the assessment of costs was still ongoing. However, in the fifteen settled cases the success fees were said to total in excess of GBP 600,000 and the ATE insurance premiums in excess of GBP 200,000. In the eight cases that went to trial, the success fees exceeded GBP 1.4 million, and the ATE premiums exceeded GBP 632,000.
12. In light of the Court’s judgment in MGN Limited v. the United Kingdom (no. 39401/04, 18 January 2011), in the course of the privacy proceedings the claimants, apparently in an attempt to pre-empt the decision in the costs assessment, sought declarations that their claims for misuse of private information did not engage Article 10 of the Convention and as a result they were entitled to payment of additional liabilities; and that on the facts of their cases the payment to them of additional liabilities would be compatible with the applicant’s rights under Article 10. However, the parties subsequently agreed that the real issue to be decided was whether the CFA scheme, insofar as it allowed for the recovery of the success fees and ATE premiums, was incompatible with Article 10 of the Convention.
13. The High Court determined that, on the basis of binding English authority (namely, Campbell v. MGN Limited [2004] UKHL 22) the English legislative regime which permitted the recovery of the additional liabilities was not incompatible with Article 10 of the Convention (see 8 Representative Claimants and Others v. MGN Ltd [2016] EWHC 855 (Ch)). While the court acknowledged that the position of the ATE premiums was technically different to that of the success fees, it found it “very hard to see how ATE premiums fall to be treated differently in the circumstances”. It therefore came to the conclusion that the recovery of those premiums did not contravene Article 10 either, because of the provisions of Article 10 § 2 of the Convention.
14. The claimants’ had further argued that in any event there was no question of an infringement of the applicant’s Article 10 rights because in these cases its actions had fallen outside the realm of responsible journalism. The court rejected that argument, since in its view this was not a case in which a party resisted the enforcement of a particular right because of its apparent contravention of Article 10. Rather, it was an example of a situation in which a body of legislation as a whole was said to contravene Article 10. Therefore, it stated that:
“It does not matter for these purposes that MGN has (at least in the eight decided cases) been found guilty of conduct which, at least in some instances, can be characterised as criminal and which, generally, it might be difficult to regard as responsible journalism. All that means at the end of the day is that its rights of freedom of expression were trumped by the privacy rights of the claimants (on the facts of the cases).”
15. Finally, the court found that the applicant was estopped from challenging the recoverability of the success fees, but not the ATE premiums, of the eight claimants whose cases went to trial, since it had relied on the existence of those fees to challenge their claim for a ten percent uplift in damages.
The judgment of the Supreme Court16. The applicant was granted a “leapfrog” certificate allowing it to appeal directly to the Supreme Court, where its appeal was heard together with two other cases (Flood v. Times Newspapers Ltd (No. 2), Miller v. Associated Newspapers Ltd and Frost and others v. MGN Ltd (No. 2) [2017] UKSC 33).
17. The Supreme Court handed down its judgment on 11 April 2017. In the leading judgment, Lord Neuberger of Abbotsbury PSC, with whom Lord Mance, Lord Sumption, Lord Hughes and Lord Hodge JJSC agreed, did not consider it appropriate to determine whether domestic law should reflect MGN Limited to the extent of laying down a general rule that where a defendant was a newspaper or broadcaster, the recoverability of the success fee would normally infringe its Article 10 rights. In his view, even if such a general rule applied at the domestic level, in the present case the orders for costs should not be varied as it would be wrong to deprive the claimants of the ability to recover the success fees and ATE premiums for which they were liable to their legal advisors and ATE insurers respectively. Not only would this amount to a plain injustice, but it would also risk infringing the claimants’ rights under Article 1 of Protocol No. 1 to the Convention as they had a legitimate expectation of a legal right. In addition, it could infringe their rights under Article 6 of the Convention. It was a fundamental principle of any civilised system of government that citizens were entitled to act on the assumption that the law was set out in legislation and would not be changed retroactively. While freedom of expression was also a fundamental principle, it was not centrally engaged in these cases as the decision in MGN Limited was based on the indirect chilling effect on freedom of expression of a very substantial costs order.
18. Unlike the claimants in the Flood and Miller cases, the claimants in the Frost case (the case against the applicant) had all entered into CFAs and taken out ATE insurance after publication of the Court’s judgment in MGN Limited. Nonetheless, Lord Neuberger indicated that he would reach the same conclusion since the 1999 Act regime had been lawful under domestic law at the relevant time. However, he considered there to be another, more fundamental, reason why it was not open to the applicant to rely on any general rule laid down in MGN Limited; namely, the rule could have no application where information was obtained illegally by or on behalf of a media organisation. He indicated that on the facts of the case the court was not merely concerned with the complaint that the applicant had published, or threatened to publish, information which infringed the claimants’ privacy rights. It was also concerned with the complaint that the information in question had been obtained unlawfully by or on behalf of the applicant.
19. Lord Neuberger accepted that the applicant’s Article 10 rights were engaged, in the sense that an aspect of most of the claimants’ complaints was that private information was published in its newspapers, but considered that it would be “quite unrealistic” to give those rights anything like the sort of weight they were given in MGN Limited. He continued:
“this was not a case where there can be any suggestion of MGN or its agents even hoping, let alone intending or expecting, that the end would justify the means, as might be the case where unlawful means are used in the expectation, or even the reasonable hope, that it may yield information which it would be in the public interest to reveal. The claimants were generally celebrities, footballers, television personalities and the like; people whose private lives may be of interest to the public, but the revelation of whose private lives is not normally in the public interest.
I accept that the courts must be careful before deciding that a particular case of this sort involves newsgathering whose nature is so extreme as to lie outside the territory which should be subject to the Rule. However, bearing in mind the persistence, pervasiveness and flagrancy of the hacking and blagging, and the lack of any public significance of the information which it would be expected to and did reveal, it appears to me that this is not a case where the Rule can properly be invoked by MGN. As the Strasbourg court explained at para 201, its decision that the liability for costs in MGN v UK offended article 10 was based on the proposition that ‘the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern’. I cannot accept that such a proposition applies in relation to claims based on a defendant’s unlawful hacking and blagging of the phone records of individuals such as the 23 claimants in Frost v MGN.”
RELEVANT LEGAL FRAMEWORK AND PRACTICE
20. The relevant domestic law and practice concerning costs, conditional fee arrangements and success fees is, for the most part, set out in the judgment of MGN Limited v. the United Kingdom, no. 39401/04, §§ 89-120, 18 January 2011.
Legal Aid, Sentencing and Punishment of Offenders Act 201221. Following the Court’s judgment in MGN Limited, section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) precluded, as a general rule, the recoverability of success fees and ATE premiums by successful claimants from the losing party. However, although section 44 was, for the most part, brought into force in April 2013, by virtue of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 5 and Saving Provision) Order 2013, the Government opted not to bring it into force in respect of “publication and privacy proceedings”.
22. Article 1(2) of the 2013 Order defined “publication and privacy proceedings” as encompassing proceedings for (a) defamation; (b) malicious falsehood; (c) breach of confidence involving publication to the general public; (d) misuse of private information; or (e) harassment, where the defendant is a news publisher.
23. On 29 November 2018 the Government, in a consultation response on Costs Protection in Defamation and Privacy Proceedings, announced that section 44 of LASPO would now be commenced in relation to defamation proceedings so that success fees would not be recoverable. ATE insurance premiums would remain recoverable.
Coventry and Others v. Lawrence and Others [2015] UKSC 5024. In this case the plaintiffs, who were funded by a conditional fee arrangement and who had taken out ATE insurance, had brought proceedings for noise nuisance against six defendants. The plaintiffs’ base costs at first instance amounted to GBP 307,642; the 100 percent success fee amounted to GBP 215,007; and the ATE premium was in the region of GBP 305,000. Furthermore, the plaintiffs’ base costs in the Court of Appeal and Supreme Court were GBP 103,457 and GBP 204,226, respectively; their success fees were GBP 71,770 in the Court of Appeal and GBP 92,115 in the Supreme Court; and their ATE premiums were GBP 70,141 in the Court of Appeal and GBP 126,588 in the Supreme Court.
25. The unsuccessful defendants contended that the scheme under the Access to Justice Act 1999 (“the 1999 Act”), pursuant to which an order for costs made by a court against a losing party could include both the success fees payable under a CFA and any ATE premium, was incompatible with both Article 6 and Article 1 of Protocol No. 1 to the Convention. By a majority of five to two, the Supreme Court rejected their submissions. The leading judgment was handed down by Lord Neuberger and Lord Dyson (with whom Lord Sumption and Lord Carnwath agreed). Lord Neuberger and Lord Dyson distinguished MGN Limited, since in that case the Court’s criticisms of the system had been made in the Article 10 context, and it had always given particular weight to freedom of expression. The complaint in that case was therefore of a “wholly different character”.
26. Lord Neuberger and Lord Dyson accepted that under the 1999 Act costs awarded to successful claimants who had the benefit of CFAs could be very high indeed, and therefore had the potential to place opposing parties under considerable pressure to settle. However, having regard to the approach adopted towards general measures in cases such as Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, ECHR 2013 (extracts)), they noted that the system as a whole was a rational and coherent scheme for providing access to justice to those to whom it would probably otherwise have been denied, it had been made following wide consultation, and it fell within the area of discretionary judgment afforded to legislators and rule-makers.
27. Nevertheless, given that the Court had rejected such an argument in MGN Limited, albeit in the Article 10 context, Lord Neuberger and Lord Dyson proceeded to examine the position more critically. They observed that in creating the scheme the Government had been trying to find a solution to the problem created by the constraining of civil legal aid in 1999, but it proved impossible to come up with a solution that would meet with universal approval. However, the potential unfairness of the 1999 Act scheme was mitigated by the fact that district judges and costs judges would perform the role of “watchdog” to check any practices which might undermine its fairness. Thus, base costs were to be assessed by the court, having regard to their proportionality and reasonableness. As to any additional liability, a successful litigant was only entitled to a reasonable success fee and ATE premium. In an appropriate case, the court could make a cost-capping order, and defendants could themselves enter into CFAs and take out ATE insurance.
28. For these reasons, Lord Neuberger and Lord Dyson were satisfied that the 1999 Act scheme struck a fair balance between the interests of different litigants.
29. Lord Mance, with whom Lord Carnwath also agreed, similarly rejected the defendants’ challenge. He observed that the scheme had been endorsed by domestic courts for over a decade, and litigants and lawyers had justifiably relied on its validity. Therefore, legal certainty, consistency and the legitimate expectations generated all militated in favour of the Supreme Court upholding the scheme.
30. Lord Clarke of Stone-Cum-Ebony (with whom Baroness Hale of Richmond agreed) disagreed with the majority, finding that the principles identified by the Court in MGN Limited in the context of Article 10 applied also to this case, where the defendants were relying on their right of access to justice and a fair trial under Article 6 and/or their right to protection of property under Article 1 of Protocol No.1. For him, it was discriminatory and disproportionate to burden uninsured defendants with costs which vastly exceeded the fair and reasonable costs incurred by the claimant in order to encourage solicitors to act for other claimants in cases where the claim might fail. In particular, he noted that the way in which the success fee was calculated compounded the inequality and unfairness because the riskier the claimant’s case, the greater the success fee his lawyer could legitimately charge. It therefore followed that the stronger the defendant’s prospect of success, the more he would have to pay the claimant in the event that the claimant won.
31. In addition, Lord Clarke considered it “a striking feature of a CFA” that it was available to rich as well as poor applicants. Thus, it was not only a means of providing access to justice for those who could not otherwise afford it, but also a “risk free means of providing access to lawyers for those who could fund it in other ways”. Whereas the claimant had a choice about whether to go to court, once that choice was made, the defendant had no choice not to take part. Moreover, since ATE insurance was usually only available to litigants whose chances were “better than evens”, if the claimant had ATE insurance, the defendant would have little or no chance of obtaining it.
COMPLAINT
32. The applicant complains under Article 10 of the Convention about its liability to pay the success fees and ATE premiums of the successful claimants in the privacy proceedings.
THE LAW
33. The applicant complains of a breach of Article 10 of the Convention, which provides as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The parties’ submissionsThe Government34. The Government submitted that the present case was readily distinguishable from that of MGN Limited v. the United Kingdom, no. 39401/04, 18 January 2011. It was not a case of defamation or breach of confidence where a requirement to pay costs might produce a chilling effect capable of discouraging the participation of the press in debates on matters of legitimate public interest. Rather, it was a case of unlawful hacking unconnected with any legitimate journalistic activity and without any relationship to the public interest. Therefore, the concerns raised in MGN Limited simply did not arise.
35. In the Government’s view, there was no similarly close connection between liability for unlawful phone hacking and blagging activity and a defendant’s act of expression. The fact that the unlawfully obtained information was subsequently used for the purposes of publication did not alter that position. The resulting liability for costs was insufficiently connected to the contents of any publication; it was not a restriction or penalty connected to the applicant’s speech, but rather the consequence of a finding of liability for unlawful information gathering. Consequently, the order that the applicant reimburse the claimants for success fees and ATE premiums did not constitute an interference with its right to freedom of expression.
36. Should the Court find otherwise, the Government contended that the CFA scheme was prescribed by law and pursued the legitimate aim of achieving the widest possible public access to legal services for civil litigation. Furthermore, while the Court had identified flaws in the scheme in MGN Limited, that did not mean that there would be an automatic infringement of Article 10 in every case. The application of Article 10 involved a balancing exercise which had to be undertaken in different contexts and could produce different results depending on the nature of the activity complained of and the strength of the competing interests at play. In the present case the reasoning in MGN Limited simply could not apply in light both of the self-evidently unlawful nature of the hacking activity in issue, and the absence of any legitimate public interest in that activity. The applicant’s Article 10 rights could not be given anything like the sort of weight they were given in MGN Limited, and the order that it reimburse the claimants’ success fees and ATE premiums could not be characterised as discouraging the participation of the press in debates over matters of legitimate public concern. That was simply not what the applicant was doing when it occurred liability and it cannot benefit from the enhanced level of Article 10 protection afforded to media organisations while at the same time avoiding any scrutiny of its activities.
The applicant37. The applicant pointed out that the total sum paid in respect of success fees and ATE premiums in relation to the claimants exceeded GBP 4,000,000. It argued that the imposition of such liabilities on media defendants constituted a breach of Article 10 of the Convention for the reasons held by the Court in MGN Limited. The Court’s carefully reasoned conclusions in that case were directed at the recoverability of such sums from media defendants in general and there was no principled basis for distinguishing the present case. Where the Court has found that a general measure fails to strike the right balance, and so fails the necessity test, its finding that an applicant’s Convention rights have been breached does not depend on an assessment of the balance struck in the circumstances of the individual case.
38. Consequently, the applicant’s conduct was not relevant to the aforementioned assessment, which was based on the chilling effect that the recoverability of such additional liabilities might have on legitimate media activity in general. Although the applicant accepted that its conduct in the present case might have fallen outside the bounds of legitimate press activity, that did not mean that the imposition of very substantial costs orders in the course of such conduct was not liable to have a chilling effect on legitimate press activity. Its conduct had played no part in the Court’s analysis in MGN Limited and it could not therefore form a legitimate basis for distinguishing the present case.
39. The applicant rejected any suggestion that its activities in this case had fallen outside the ambit of Article 10 of the Convention. The claimants were awarded damages in respect of the processes of information-gathering and the publication of such information. The additional liabilities were consequent on both, and in any event both were inherently connected and both were protected by Article 10. Any distinction based on a newspaper’s conduct would make the application of the rule in MGN Limited inherently uncertain and would therefore be liable to deter the gathering and publication of information in the public interest. In this regard, it also had to be born in mind that those with editorial or executive control over published content might not always know the source of the information obtained by its journalists.
40. Finally, the applicant contended that in privacy cases the costs rules were not designed to punish the losing party depending on the court’s assessment of the wrongdoing involved; the amount of damages would reflect the degree of harm to the claimant. The fact that the applicant had been found guilty of criminal and irresponsible conduct explained why it lost in the privacy proceedings but did not answer the entirely separate question of whether imposing enormous additional costs liabilities on unsuccessful media defendants in such cases might breach Article 10 of the Convention because of its indirect chilling effect.
The Court’s assessmentGeneral principles41. Freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many examples, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 124, 27 June 2017 and Stoll v. Switzerland [GC], no. 69698/01, § 101, ECHR 2007‑V).
42. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its task is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. The task of imparting information necessarily includes, however, “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 125; see also Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 89, ECHR 2015 (extracts); and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 102, ECHR 2012).
43. The protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see NIT S.R.L. v. the Republic of Moldova [GC], no. 28470/12, § 180, 5 April 2022 and Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015, with further references).
44. However, the concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the content of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (see Pentikäinen, cited above, § 90).
45. Finally, it is well-established that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see, for example, Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 130, 8 November 2016, with further references).
MGN Limited v. the United Kingdom46. A majority of the House of Lords had found the applicant liable to pay damages for breach of confidence, after it disclosed details of a public figure’s treatment for drug addiction and published photographs of her outside a Narcotics Anonymous meeting. It was accepted that the publication of the facts of the claimant’s addiction and of her treatment was justified as there was sufficient public interest given her previous public denials of drug use; however, the majority considered that the applicant had gone too far in publishing details of her therapy and the associated photographs. The claimant’s appeal to the House of Lords was conducted pursuant to a conditional fee arrangement (“CFA”). The applicant contended that its liability to pay the success fee was so disproportionate as to infringe its right to freedom of expression under Article 10 of the Convention.
47. The Court considered that the requirement to pay these success fees, as an unsuccessful defendant in breach of confidence proceedings, constituted an interference with the applicant’s right to freedom of expression guaranteed by Article 10 of the Convention (MGN Limited, cited above, § 192). It also accepted that the interference was prescribed by law (ibid., cited above, § 194) and pursued the legitimate aim of the widest public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others within the meaning of Article 10 § 2 of the Convention (ibid., cited above, § 197).
48. The Court then addressed the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant, but also to contribute to the funding of other litigation and general access to justice, by paying up to double those costs in the form of recoverable success fees. According to the Court, this complaint concerned the question of whether the authorities had struck a fair balance between, on the one hand, freedom of expression protected by Article 10 of the Convention and, on the other, an individual’s right of access to court protected by Article 6 of the Convention. In this regard it observed that the balancing of individual Convention interests attracted a broad margin of appreciation (ibid., cited above, § 199). Similarly, a wide margin of appreciation was available to a legislature in implementing social and economic policies and in such cases the Court would respect the legislature’s judgment as to what was “in the public interest” unless that judgment was manifestly without reasonable foundation (ibid., cited above, § 200). In contrast, the most careful scrutiny on the part of the Court was called for when measures taken by a national authority were capable of discouraging the participation of the press in debates over matters of legitimate public concern (ibid., cited above, § 201).
49. Having regard to the depth and nature of the flaws in the system, highlighted in convincing detail by the public consultation process, and accepted in important respects by the Ministry of Justice, the Court concluded that the impugned scheme had exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests (ibid., cited above, § 217). It noted that this conclusion was borne out by the facts of the case before it: the claimant was wealthy and would not have been excluded from access to justice but for the CFA scheme; her lawyers did not do much CFA work, which limited their potential to act for impecunious claimants with access to justice problems; and despite the fact that the applicant’s case was not without merit, it was obliged to pay substantial success fees (ibid., cited above, § 218).
50. In conclusion, the Court stated that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters (ibid., cited above, § 219).
Application of the general principles to the facts of the case at hand51. The interpretation of the Court’s conclusions in MGN Limited is an issue of contention between the parties. For the applicant, the Court set down a general rule concerning the recoverability of success fees against media defendants (see paragraph 39 above), whereas for the Government, the application of Article 10 involved a balancing exercise which had to be undertaken in different contexts and could produce different results depending on the nature of the activity complained of and the strength of the competing interests at play (see paragraph 36 above).
52. In MGN Limited the Court, at the outset, identified the applicant’s core complaint not as the general compatibility of the CFA scheme with Article 10 of the Convention in cases against media defendants, but rather as concerning the recoverability against the applicant of the success fees agreed between the claimant and her legal representatives (ibid., cited above, § 157). Furthermore, in its concluding remarks the Court found the requirement that the applicant pay success fees to the claimant to be disproportionate having regard to the legitimate aims sought to be achieved (ibid., cited above, § 219). However, the Court’s analysis of the proportionality of the scheme was carried out largely in the abstract – it examined whether success fees recoverable against unsuccessful defendants were “necessary in a democratic society” to achieve the legitimate aim pursued (ibid., cited above, § 198) –, and it only referred to the facts of the case before it after it had reached the conclusion that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests (ibid., cited above, §§ 198-220).
53. The Court’s conclusions in MGN Limited cannot, therefore, be confined to the specific facts of that case. Nevertheless, it does not follow that the recoverability of success fees against media defendants will inevitably constitute a violation of Article 10 of the Convention. In MGN Limited the Court made it clear that this was an area where the State’s margin of appreciation was very wide indeed; not only was it tasked with striking a fair balance between the media defendant’s freedom of expression and the claimant’s right of access to court, but it was also implementing a social and economic policy and in such a case the Court would normally respect the legislature’s judgment as to what was “in the public interest” unless that judgment was manifestly without reasonable foundation (ibid., cited above, §§ 199-200). Instrumental to the Court’s conclusion that the recoverability of success fees exceeded the State’s broad margin of appreciation was the fact that most careful scrutiny was called for when measures taken by a national authority were capable of discouraging the participation of the press in debates over matters of legitimate public concern (ibid., cited above, § 201).
54. The Court has repeatedly stated that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see paragraph 43 above, and the cases cited therein). The fact that a journalist has breached the law is a most relevant – but not a decisive – consideration when determining whether he or she has acted responsibly (see paragraph 44 above). Similarly, the fact that a publication is subsequently found not to serve the public interest or contribute to a debate of general interest does not, in and of itself, imply that the journalist acted irresponsibly, or in bad faith (see, mutatis mutandis, Mosley v. the United Kingdom, no. 48009/08, § 127, 10 May 2011, in which the domestic court, despite having criticised the newspaper’s “casual and cavalier manner”, nonetheless noted that there was “significant scope for differing views on the assessment of the ‘public interest’” and concluded that it was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed). The Court has accepted that in certain cases the public’s right to be informed can extend to aspects of the private lives of public figures (see, for example, Couderc and Hachette Filipacchi Associés, cited above, § 100). Whether a publication concerning an individual’s private life is intended purely to satisfy the curiosity of a certain readership, or whether it relates to a subject of general importance, requires a careful assessment of the publication as a whole, having regard to the context in which it appears (see, for example, Couderc and Hachette Filipacchi Associés, cited above, § 102). The mere fact that a publication falls on the wrong side of the line is not indicative of bad faith.
55. That being said, the proceedings against the applicant which gave rise to the present complaint relate to activities of a wholly different order. The claimants all alleged – and the applicant accepted – that MGN journalists regularly, frequently and unlawfully hacked their mobile phones so as to listen to voice messages left by others. Those journalists also listened to the voicemail messages left by the claimants on the phones of others. In that way the journalists became privy to many aspects of the claimants’ personal, medical and professional lives, and were able to write stories and publish photographs that the newspapers would not otherwise have been able to publish, either because they would not have had the information absent the voicemail messages, or because the messages enabled information obtained from elsewhere to be corroborated (see paragraph 8 above).
56. In addition, most of the claimants alleged that private information was obtained from private investigators employed by the newspapers to find out that information. Evidence before the domestic courts indicated that private investigators were charged with finding telephone numbers of targets (so that they could be hacked), the owners of given telephone numbers, call histories (phone bills, or extracts from them) from which the identity of telephone numbers called by the victims could be ascertained, credit card details (useful for establishing how and where money was spent) and medical information. The information obtained by these investigators was likely to have been obtained by techniques including “blagging” (that is, by deception, including by wrongfully claiming to be the person entitled to it or otherwise convincing the holder to part with it by some form of pretence) (see paragraph 8 above).
57. The applicant’s journalists knew that their activities were wrongful (see paragraph 9 above). Moreover, the impact on the claimants was profound. In their evidence to the court, they told of their horror and distress at the discovery that the applicant’s journalists had been listening, on a regular and frequent basis, over a considerable period of time, to all sorts of aspects of their private lives (see paragraph 7 above). The Leveson Inquiry (see paragraph 5 above) heard how the details of private lives known only to the targets of voicemail hacking and their most trusted confidants and friends, including moments that were intensely private, such as relationship breakdown or family grief, became the subject of articles in the press. Some of the victims told the Inquiry that they had lost friends and confidants as a consequence of the paranoia and mistrust engendered by phone-hacking.
58. The claimants in the proceedings against the applicant were for the most part celebrities, footballers, and television personalities. While their private lives might have been of interest to the public, the revelation of their private lives would not normally be in the public interest. As the Supreme Court noted, this was not a case where the applicant or its agents could have entertained any hope, let alone any expectation, that the end would justify the means by yielding information which it would be in the public interest to reveal (see paragraph 19 above).
59. Consequently, in the present case the applicant’s activities, despite constituting an egregious and unlawful interference with the privacy rights of the twenty-three claimants, did not even arguably concern its participation in debates over matters of legitimate public concern (contrast, MGN Limited, cited above, § 201). As such, the finding of this Court in MGN Limited that the recoverability of success fees exceeded the broad margin of appreciation accorded to the State cannot automatically be applied in the present case. The Court agrees with the conclusions of the Supreme Court: namely, that while it must be slow to find that a case involves newsgathering whose nature is so extreme as to lie outside the general rule established in MGN Limited (namely, that where a defendant was a newspaper or broadcaster, the recoverability of the success fee would normally infringe its Article 10 rights), in the present case, bearing in mind the persistence, pervasiveness and flagrancy of the unlawful hacking and blagging, and the lack of any public significance of the information which it would be expected to and did in fact reveal, this is not a case where the applicant can properly invoke that rule (see paragraph 19 above). The Court will therefore have to consider whether in the present case the requirement that the applicant pay success fees to the claimant exceeded even the broad margin of appreciation accorded to the Government in such matters.
60. Contrary to the Government’s submissions, the Court would accept that the recoverability of the success fees interfered with the applicant’s rights under Article 10 of the Convention. It is true that the costs order was primarily a consequence of the applicant’s liability for gathering information by unlawful methods such as phone hacking and blagging. However, it is well‑established that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see paragraph 45 above). Furthermore, in respect of all but one of the claimants the applicant’s liability to pay damages was not only based on its having wrongfully listened to private or confidential information left for or by the claimant, and wrongfully obtained private information via private investigators; it was also based on the publication of stories based on that information.
61. For the reasons given by the Court in MGN Limited, the interference was clearly in accordance with the law and in pursuit of a legitimate aim (MGN Limited, cited above, §§ 194-97).
62. With regard to proportionality, the CFA scheme, insofar as it provided for the recoverability of success fees, was undoubtedly flawed for the reasons identified by the Court in MGN Limited (cited above, §§ 203-16). However, as the applicant has primarily sought to rely on the rule established in MGN Limited, rather than on the specific facts of the case, the extent to which those flaws were borne out in the domestic proceedings is unknown. In particular, it is not known whether the claimants would have been in a position to fund the litigation and thus to have access to court without a CFA. Nonetheless, in view of the fact that the applicant’s activities were so far removed from the concept of responsible journalism, and the published articles did not come close to imparting information or ideas on matters of the public interest, its Article 10 interests cannot weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. On the other hand, in view of the gravity of the intrusion into the claimants’ private lives, commensurately more weight must be given to their right of access to a court. Consequently, even if the applicant was adversely affected by each of the aforementioned flaws, in the particular circumstances of this case the recoverability of success fees cannot be said to have exceeded the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests. Nor can the authorities be said to have failed to strike a fair balance between the claimants’ right of access to court and the applicant’s Article 10 rights, such as they were.
63. In MGN Limited the applicant did not complain about the recoverability of the ATE premiums. It does, however, make such a complaint in the present case. The ATE premiums recoverable in the twelve settled cases were in excess of GBP 200,000 and in the cases that went to trial they exceeded GBP 632,000. Although the amounts were substantial, they were significantly lower than the success fees, which exceeded GBP 600,000 and 1.4 million respectively (see paragraph 10 above). Nonetheless, the Court would accept that the recoverability of the ATE premiums also interfered with the applicant’s rights under Article 10 of the Convention.
64. The recoverability of the ATE premiums was in accordance with the law (see MGN Limited, cited above, § 92). In the Court’s view, in enabling claimants to bring proceedings without the disincentive of potential liability for the defendants’ costs, it also pursued the legitimate aim of ensuring public access to legal services for civil litigation and thus the protection of the rights of others. In addition, ATE insurance afforded protection to successful defendants by providing them with the opportunity to recover their costs. Therefore, in contrast to the position in respect of success fees, which aimed to compensate lawyers for their unsuccessful cases, in paying the ATE premiums unsuccessful defendants were not being required to contribute to the funding of other litigation and general access to justice. Rather, the focus was solely on the parties to the proceedings in question.
65. It would therefore appear that the case for the recoverability of ATE premiums is, if anything, stronger than the case for the recoverability of success fees. However, it is not necessary for the Court to determine whether the recoverability of ATE premiums would, in a case which otherwise fell to be considered under the general rule in MGN Limited, be disproportionate to the legitimate aims pursued. That is because in the present case, in view of the very limited weight to be accorded to the applicant’s Article 10 rights, and the greater importance to be attributed to securing the claimants’ right of access to court, the Court considers that the requirement that the applicant pay the ATE premiums did not exceed the broad margin of appreciation accorded to the authorities in such matters.
66. Consequently, the applicant’s complaint is manifestly ill-founded and must be rejected as inadmissible pursuant to Article 35 § 3(a) of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 October 2022.
Ilse Freiwirth Gabriele Kucsko-Stadlmayer
Deputy Registrar President