| CONFIDENTIAL INFORMATION — Disclosure — Public interest — Clandestine recording of sado-masochistic activities — Materials so obtained and articles based thereon information published in newspaper and on its website — Action for breach of confidence and of Convention right to respect for private life — Whether newspapers’ reportage in “public interest” — Whether exemplary damages available — Principles applicable to award for compensatory damages — Human Rights Act 1998, Sch 1, Pt I, arts 8, 10
Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB); [2008] WLR (D); [2008] WLR (D) 259
QBD: Eady J: 24 July 2008
Sado-masochistic behaviour, even where it involved adultery, was not a matter of genuine public interest justifying interference by the media in an individual’s private life. Exemplary damages were not available in a claim for infringement of privacy: a claim for compensatory damages could reflect an element of aggravation. Certain principles were applicable in the assessment of compensatory damages for infringement of privacy.
Eady J so held in the Queen’s Bench Division, when allowing the claim by Max Mosley, President of the Fédération Internationale de L’Automobile, against News Group Newspapers Ltd for breach of confidence and/or the unauthorised disclosure of personal information said to infringe the claimant’s rights to respect for his private life as protected by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in respect of an article in the News of the World headed “F1 boss has sick Nazi orgy with 5 hookers” and accompanying images and also in respect of information and video footage posted on the defendant’s website. The video footage had been filmed clandestinely by one of the women present at the event in question (“E”).
EADY J said that E had committed a breach of confidence as well as a violation of the art 8 rights of all those involved and publication could only be justified if it were in the public interest: see art 8(2) of the Convention and cl 10 of the Press Complaints Commission Editors Code of Practice, 1 August 2007. There could be a public interest in the secret filmings and subsequent publication of behaviour which involved “mocking the ways Jews were treated” or “parodying Holocaust horror” where the claimant was accountable to an organisation and where such behaviour would call into question his role in that organisation. However the evidence did not support the conclusion that the claimant had specifically ordered a Nazi or concentration camp scenario or that there was in fact a Nazi or concentration camp theme to the event. Sado-masochistic behaviour, even where there was adultery, was not a matter of public interest in itself and it was not for the media to expose sexual conduct which did not involve any significant breach of the criminal law. It was for the court to decide ex post facto whether a particular publication was in the public interest and such a decision must be capable of being tested by objectively recognised criteria. It could, however, be argued as a matter of public policy, that allowance should be made for a decision reached which fell within a range of reasonably possible conclusions and to this end there could be scope for paying regard to the concept of “responsible journalism”: see in the context of public interest privilege in libel, Reynolds v Times Newspapers Ltd [2001] 2 AC 127. In the circumstance of the case, even taking the reasonable judgment of the journalist concerned into account, there was no public interest in the publication of the information and images. There were certain principles applicable to the award of compensatory damages for infringement of privacy: (1) compensatory damages could include an element of aggravation; (2) the purpose of damages addressed the specific public policy factors in play when there had been a breach of confidence including personal dignity, autonomy and integrity; (3) as well as providing for distress, hurt feelings and loss of dignity there was an element for vindication to mark the infringement of the right, and nominal damages would not serve this purpose; (4) the award must be proportionate and not open to the criticisms of arbitrariness, to which end there had to be a readily identifiable scale, and therefore it would be legitimate to pay some attention to the current levels of personal injury awards; (5) it was legitimate to take into account the effect on the claimant of the defendant’s advancing its case on public interest; on the other hand the extent to which the claimant’s own conduct had contributed to the nature and scale of the distress might be a relevant factor on causation. In the circumstances it was appropriate to award the claimant a sum of £60,000. Exemplary damages were not available on such a claim.
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