Information Note on the Court’s case-law No. 141
May 2011
Mosley v. the United Kingdom - 48009/08
Judgment 10.5.2011 [Section IV]
Article 8
Article 8-1
Respect for private life
Absence of any legal requirement for newspapers to give advance notice before publishing details of a person’s private life:
no violation
Facts – A national weekly newspaper published a front page article, including intimate photographs, taken from secretly recorded video footage about the alleged “Nazi” sexual activities of the applicant, a well-known figure in the International Automobile Federation and Formula One. An extract of the video and still images were published on the newspaper’s website and reproduced on the Internet. The applicant sued the publisher for breach of confidence and invasion of privacy and claimed damages. In addition, he sought an injunction to restrain the newspaper from making available on its website the edited video footage. Shortly afterwards the newspaper published a second series of articles on the same subject. The High Court refused to grant the injunction on the ground that the material was no longer private as it had been published extensively in print and on the Internet. In the subsequent privacy proceedings it found that the published articles and images had breached the applicant’s right to privacy as they had no Nazi connotations and therefore there had been no public interest or justification for their publication. The applicant was awarded damages of 60,000 pounds sterling (GBP) and GBP 420,000 costs. Despite the monetary compensation he was awarded he complained that he remained a victim of a violation of his right to privacy in that he had effectively been denied the opportunity to seek an interim injunction owing to the absence of any legal requirement for the newspaper to give advance notice of publication.
Law – Article 8
(a) Admissibility – As to the Government’s arguments that the applicant was no longer a victim of any violation as he had been awarded damages and, in any event, had failed to exhaust domestic remedies, the Court found that no sum of money awarded after disclosure of the impugned material and none of the remedies relied upon by the Government (an appeal against the judge’s ruling on exemplary damages, a claim to an account of profits and a complaint under the Data Protection Act) could afford a remedy for the specific complaint that there was no legal requirement in the United Kingdom for the media to give advance warning before publishing details of a person’s private life.
Conclusion: admissible (unanimously).
(b) Merits – Since the domestic courts had found no Nazi element in the applicant’s sexual activities they had concluded that there was no public interest or justification in the publication of the impugned articles and had awarded the applicant damages for the violation of his privacy. The newspaper had not appealed against the judgment. The Court therefore considered that the publications in question had resulted in a flagrant and unjustified invasion of the applicant’s private life. Given that the applicant had obtained a finding in his favour before the domestic courts, the Court confined its assessment to the general framework in place in the domestic legal system for balancing rights of privacy and freedom of expression having regard to the margin of appreciation accorded to the State and to the clarity and potential effectiveness of the measure called for by the applicant.
It was clear that the domestic authorities had been obliged under the Convention not only to refrain from interfering with the applicant’s private life, but also to ensure the effective protection of that right. The right to private life was protected in the national legal system by a number of measures: self-regulation of the press, a civil claim in damages and an application for an interim injunction restraining publication. In its earlier case-law, the Court had implicitly accepted that ex post facto damages following a defamatory publication provided an adequate remedy for violations of the right to private life arising from newspaper publications of private information.
The issue in the present case was whether, notwithstanding that past approach, the specific measure called for by the applicant – a legally binding pre-notification rule – had been required in order to discharge the State’s obligation. The implications for freedom of expression of such a rule were not limited to the sensationalist reporting at issue in the applicant’s case but extended to political reporting and serious investigative journalism and the introduction of restrictions on the latter type of journalism required careful scrutiny. The States enjoyed a certain margin of appreciation in respect of measures to protect people’s right to private life in respect of freedom of expression and the parliamentary committee inquiry on privacy issues that had recently been held in the United Kingdom, with the participation of various interested parties including the applicant himself, had rejected the need for a pre-notification requirement. Although a number of member States required the consent of the subject before private material was disclosed, the Court was not persuaded that the need for consent in some States could be taken to constitute evidence of a European consensus as far as a pre-notification requirement was concerned. The applicant had not cited a single jurisdiction in which such a requirement existed, nor had he pointed to any international legal instruments obliging States to put in place such a requirement. Finally, the United Kingdom system fully reflected the resolutions of the Parliamentary Assembly of the Council of Europe on media and privacy. The respondent State’s margin of appreciation in the present case was thus a wide one.
As to the clarity of any pre-notification requirement, the concept of “private life” was sufficiently well understood for newspapers and reporters to be able to identify when a publication could infringe the right to respect for private life. A satisfactory definition of those who would be subject to the obligation could also be found in domestic law. However, the effectiveness of a pre-notification obligation was disputable.
Firstly, any such option would require some form of “public interest” exception, so that a newspaper could opt not to give advance notice of publication if it believed it could subsequently defend its decision on public-interest grounds. In order to prevent a serious chilling effect on freedom of expression, “public interest” for this purpose could not be narrowly defined and a reasonable belief that such an interest was at stake would have to be sufficient to justify non-notification. In the applicant’s case, given that the reporter and the editor had believed that the sexual activities they were disclosing had Nazi overtones, and so were of public interest, they could have chosen not to notify the applicant, even if a legal pre-notification requirement had been in place.
Secondly, any pre-notification requirement would only be as strong as the sanctions imposed for failure to observe it. In this connection, particular care had to be taken when examining constraints which might operate as a form of censorship prior to publication. Although punitive fines and criminal sanctions might be effective in encouraging compliance with pre-notification, they would run the risk of being incompatible with the requirements of Article 10 of the Convention. They would have a chilling effect on journalism in political and investigative reporting, both of which attracted a high level of protection under the Convention.
Although the dissemination of such information about the private lives of those in the public eye was generally for the purposes of entertainment rather than education, it undoubtedly benefited from the protection of Article 10. The Article 10 protection afforded to publications might cede to the requirements of Article 8 where the information was of a private and intimate nature and there was no public interest in its dissemination. However, having looked beyond the facts of the applicant’s case, and having had regard to the chilling effect to which a pre-notification requirement risked giving rise, to the doubts about its effectiveness and to the wide margin of appreciation afforded to the United Kingdom in that area, the Court concluded that Article 8 did not require a legally binding pre-notification requirement.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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