On 9 April, Mr Justice Eady delivered judgment on an application by Max Mosley for an injunction to restrain the News of the World (NOTW) from making available on its website an extract from a videotape.
The facts behind the application were as follows. Max Mosley (the fourth son of Sir Oswald Mosley) is President of the Federation Internationale de l’Automobile (FIA). The FIA is the governing body of motor sport worldwide and represents the interests of motoring organisations and also car users around the world, though it is best known for its governing role for Formula 1. Mr Mosley is a well known figure in the motor racing world and has spoken out on several issues, including racism in Formula 1.
On 30 March, NOTW published an article with the headline “F1 boss has sick Nazi orgy with 5 hookers” which was accompanied by a number of stills from the video footage of the alleged “orgy”. The video footage contained shots of Mr Mosley taking part in sexual activities with five prostitutes and included a “prison fantasy”. The events took place in a private flat near the home of Mr Mosley. It emerged that the footage had been taken by one of the prostitutes taking part who then presumably sold the footage to NOTW.
The lurid footage of the sexual activities of Max Mosley appeared, as is now common, not only in print copies of NOTW but also on its website. With visitors to the website of its sister paper (The Sun) reaching three times the number of people who buy the paper, the online publication of a national newspaper is increasingly significant.
Whilst Mr Mosley did not dispute that the events took place, he did dispute the way they were portrayed in NOTW as being Nazi role-play. He also claimed that publication of the footage breached his right to privacy under Article 8 of the European Convention on Human Rights.
In a carefully worded judgment Mr Justice Eady described the contents of the footage as delicately as possible for the purposes of properly conveying their full vividness. Mr Mosley’s lawyers had moved quickly, contacting the NOTW the day after the footage appeared on its website. The NOTW had removed the footage and undertaken only to restore it on 24 hours notice. The application before Mr Justice Eady was for an injunction preventing its return until trial. However, as the judge observed, in the short space of 48 hours that the footage was on the News of the World website, although the article was only visited approximately 435,000 times, the footage was visited nearly 1,425,000 times because it could be accessed via other websites in which it had been embedded. Other websites had also copied the footage and made it available.
There were two issues dividing Mr Mosley and the NOTW in this action. The first was the one on which the court was asked to make a preliminary ruling, Mr Mosley’s application for an interim injunction. This turned on whether his Article 8 right to privacy took precedence over the Article 10 right of the NOTW to free expression. The other issue was whether Mr Mosley is guilty of hypocrisy because of the apparent Nazi role playing and allusions to elements of the holocaust.
As Mr Justice Eady recognised, the libel action was not going to provide Mr Mosley with an interim injunction because of the well established principle of Bonnard v Perryman that the courts will not grant an injunction in libel pre-publication where the defendant proposes to defend the allegations as true or honest comment. The judge drew a clear distinction based on a number of authorities between confidential information generally, and confidential information in the form of a photograph. He did so in response to the assertion on behalf of Mr Mosley that “the visual display of the edited footage serves no legitimate purpose and that its grossly intrusive nature is unnecessary and disproportionate.”
The judge reminded himself that under Section 12(3) of the Human Rights Act 1998 he needed to be “satisfied that the claimant will be likely to obtain similar relief on a permanent basis at trial.” He then addressed the question of whether, in the light of the massive number of people who had already viewed the footage, Mr Mosley any longer had a reasonable explanation of privacy in the footage.
The judge rejected the newspaper’s claim that the footage should be returned to the website in order to refute Mr Mosley’s denials of a link in the sexual charade to Nazism. He was, however, more troubled with the issue of whether there was any privacy in the footage “left for the law to protect”. The point may be reached where the information sought to be restricted by an injunction has become so widely disseminated that “an injunction would make no practical difference.”
The judge observed that this was not an attractive argument where the information was put in the public domain by the defendant itself, which was thereby “seeking to take advantage of its own “wrong” in having made the (hypothetically tortious) publication in the first place.” In the end, however, he concluded that “[t]he dam has effectively burst” and reluctantly conceded that“although this material is intrusive and demeaning, and despite the fact there is no legitimate public interest in its further publication,” an injunction “would merely be a futile gesture.”
This cautionary tale teaches those who act for privacy claimants the necessity of moving with immense speed if footage such as this appears on a newspaper website where it can fully enter the public domain in a matter of hours. Any hesitation may make the difference between success and failure in restraining such publication. There are also likely to be more out of hours applications to duty judges who will then have to undertake the difficult balancing exercise between Articles 8 and 10 at great speed, and often without immense experience in this field (unlike Mr Justice Eady). The privacy jurisdiction of the High Court appears to be becoming yet more of a lottery by the day.