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Wednesday, 30 April 2008

Free speech trumps privacy, but only just, in Mosley case

The IPKat has come across a privacy case in which Max Mosley attempted to enjoin the News of the World from showing video footage of his allegedly Nazi-themed orgy with five prostitutes. The footage was posted on the News of the World’s website at the end of March. It was then voluntarily taken down on 31 March, by which time other websites had copied and posted the footage. On 3 April the News of the World gave notice that it intended to repost the footage. Mosley applied to the court for an injunction to stop this.

According to Eady J, Mosley’s Art.8 right to privacy was in conflict with the News of the World’s Art.10 right to freedom of expression. In balancing the two, the court has to take the following into account:

i) No Convention right has, as such, precedence over another;

ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an "intense focus" is necessary upon the comparative importance of the specific rights being claimed in the individual case;

iii) The Court must take into account the justification for interfering with or restricting each right;

iv) So too, the proportionality test must be applied to each

The information disclosed intrustive and demeaning to Mosley. However, the court had to consider two factors which could limit his right to privacy:

1. There was no public interest justification for revealing the edited video footage. The public was already aware of Mr Mosley’s proclivities, and the pictures embodied in the video footage were only of interest because they were “mildly salacious and provide an opportunity to have a snigger at the expense of the participants”.

Although there was a public interest in protecting the public from being misled by statements made by a claimant (in this case, the possibility that Mr Mosley was not telling the truth in denying that the S&M session has a Nazi theme), the News of the World could put the record straight without recourse to the video footage. In particular, the footage in question did not convincingly show that Mosley was lying.

2. However, there was no point in barring the News of the World from showing the material since the material was now widely available on the internet and anyone who wished to view the footage could easily do so. Either Mosley had lost his reasonable expectation of privacy because the information was so widely available, or the information has entered the public domain. In either case, the court had to avoid adopting the role of King Canute and making “vain gestures”.

The judge summarised:

I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.

The IPKat is a tad puzzled by Eady J’s approach. Although he states that no convention right takes precedence over another, he seems to proceed on the assumption that Mosley has a prima facie right to privacy which would need to be rebutted by free speech concerns. In other words, free speech seems to be being treated almost as a defence, rather than as a right of equal importance to privacy.

1 comment:

Birgit said...

Re Eady J’s approach.

I can add a German perspective, as I believe that the Judge's approach in the case is very similar to how German courts decide similar cases. The balancing of the conflicting rights (special personality right "privacy" on the one hand and freedom of expression on the other hand, both being human rights protected under the German constitution) is usually decided within the question of "justification"/defence/"Rechtfertigungsgrund". This procedure applies to personality right (which encompasses privacy rights) infringements under sec 823 BGB (German Civil Code), as well as under German criminal law. German criminal law even provides for a special justification in its sec 193 which is called "justified interests", which the courts tend to be interpret in the light of the constitutional guarantees of freedom of expression (Art. 5(1) GG) and personality right, Art. 2(1), 1(1) GG .

The Judge in the Mosley case is doing exactly the same. He is looking at the right that is infringed, which is privacy under Art. 8. He then assesses whether this infringement could be "justified" by a conflicting right that should be given precedent in the particular circumstances of the case: freedom of expression under Art. 10. The balancing of rights is necessary because no "Convention right has, as such, precedence over another". He then balances both rights by applying the proportionality principle. If one right was per se "higher ranking", there would be no need for a balancing. So, yes, "freedom of speech" is definitely a defence and will prevail if the balancing of the conflicting rights leads to this outcome.

This approach looks (almost) identical to the German court's approach and looks very familiar to me.

What is not quite clear to me, is the way the "proportionality test" is applied and, indeed, the final outcome of the case including the rather free "balancing" of the rights. Yes, the information is in the public domain but has Mr Mosley really lost "his reasonable expectation of privacy because the information was so widely available"? I certainly don't think Mr Mosley's actions are of good taste but he did conduct these privately. It was not Mr Mosley that made it all public. While the right of privacy and the right of freedom of speech, press, media are per se of the same importance, the sphere of intimacy (which includes an individual's sexuality) should be taken into special account when balancing these conflicting rights. Another question that should perhaps have been asked is how severe the encroachment of the privacy right was/is? The fact that the information is now widely available does not make a further reposting right or lawful. Whether there was any public interest in publishing this story with so much detail(!) in the first place is also questionable, so should it be re-posted just as it was. Yes, the media should never be censored but was the level of intrusion really necessary to inform the public? Can the same information not be reported in a less intrusive manner?

So was this really proportional? I am not sure this follows. A republication of the same material on the same news site does send a signal, whether the information is in the public domain or not. The signal this sends to me is that the publication of the detailed video was lawful in the first place.

It is my view that such cases will be decided differently in a few years when more jurisprudence will be available from English courts especially when it comes to the balancing of the conflicting rights.

Very interesting case....

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