Mr Justice Eady states in his overall conclusions that there is nothing “landmark” about his decision in the Mosley case. So far as the law is concerned he is right: Mosley’s victory affirms what many people and most lawyers – but not apparently the tabloids – already knew, namely that the law of privacy is well-established and that people’s sex lives are essentially their own business, provided the participants are genuinely consenting adults. It did not need the Mosley judgment to tell us that. The only surprising aspect of the case is that News Group chose to fight it in the first place.
The judgment is, however, a major landmark in a much wider and more significant sense: it has had a massive impact. The tabloid press can no longer bury their collective heads in the sand. Even they have to recognize that it is now completely unacceptable to invade the personal space of individuals for the sole purpose of selling copy.
The law of privacy is now embedded in the British legal system: private sexual activity, and photographs of it in particular, are off the agenda unless there is an overriding public interest in publication. As Mr Justice Eady made clear that is a high hurdle to jump. The majority of citizens in the UK will welcome the clarity of his judgment, and his reassurance that the British judiciary must reflect the modern approach to privacy and sexual preferences.
It is also an outstanding judgment in the best tradition of British jurisprudence: articulate, balanced, authoritative and persuasive. The following are the critically important points in his judgment:
- It is not for the media to expose private activities because they find them distasteful or contary to moral or religious teaching.
- The fact that a person has or may have committed a crime – even a serious one – does not of itself deprive them of their rights under the law, including their right to personal privacy. They do not, in Mr Justice Eady’s words, turn into “an outlaw”.
- The task of the judge is to provide an adequate remedy for the infringement of a right. It is one from which the judge should not be distracted by prurience, moral disapproval or religious beliefs.
- The only justification for intruding into an individual’s personal space, such as his or her sex life, is where “there is a countervailing public interest sufficiently strong to outweight it.”
- The use of hidden cameras and other surveillance devices for obtaining personal information is not acceptable unless it is in the public interest and there is no other means of obtaining it.
Practical Guidelines
If a journalist is in possession of information about you – or photographs of you – which are private in nature and which you do not wish to be published, you are entitled to:
- decline to comment
- inform the journalist you consider it to be private information
- make it clear that you do not consent to publication
- ask the journalist to confirm it will not be published
- write to the editor repeating that you do not consent
You should take legal advice immediately if you wish to prevent publication. There is no guarantee you will be successful, but the longer you leave it the less likely you are to succeed. Mosley left it too late.