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FOURTH
SECTION
CASE OF
MOSLEY v. THE UNITED KINGDOM
(Application
no. 48009/08)
JUDGMENT
STRASBOURG
10 May
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mosley v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
David Thór
Björgvinsson,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 11 January 2011 and 12 April 2011,
Delivers
the following judgment, which was adopted on the latter date:
PROCEDURE
The
case originated in an application (no. 48009/08) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Max Rufus Mosley (“the applicant”), on 29
September 2008.
The
applicant was represented by Collyer Bristow LLP, a firm of
solicitors based in London. The United Kingdom Government
(“the Government”) were represented by their Agent,
Mr D. Walton, Foreign and Commonwealth Office.
The
applicant alleged that the United Kingdom had violated its positive
obligations under Article 8 of the Convention, taken alone and taken
together with Article 13, to ensure his right to respect for his
private life.
On
20 October 2009 the Court decided to give notice of the application
to the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
The
applicant and the Government each filed written observations (Rule 54
§ 2 (b)). Third-party comments were also received from Guardian
News & Media Ltd, The Media Lawyers’ Association and Finers
Stephens Innocent on behalf of The Media Legal Defence Initiative,
Index on Censorship, The Media International Lawyers’
Association, European Publishers’ Council, The Mass Media
Defence Centre, Romanian Helsinki Committee, The Bulgarian Access to
Information Programme (AIP) Foundation, Global Witness and Media Law
Resource Centre, which had been given leave by the President to
intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 3 (a)).
A
hearing in the case took place in public in the Human Rights
Building, Strasbourg, on 11 January 2011 (Rule 59 § 3).
There appeared before the Court:
(a) for
the Government
Mr D. Walton,
Agent,
Mr J. Eadie QC,
Counsel,
Mr A. Jeeves,
Adviser;
(b) for
the applicant
Lord Pannick QC,
Mr D. Sherborne,
Counsel,
Mr M.
Mosley, Applicant,
Mr D. Crossley,
Mr T.
Lowles, Solicitors.
The
Court heard addresses by Mr Eadie and Lord Pannick and their answers
in reply to questions put by the Court.
On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1) but the present case remained with the Chamber
constituted within the former Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1940 and lives in Monaco.
On 30 March 2008, the News of the World, a
Sunday newspaper owned by News Group Newspapers Limited, published on
its front page an article headed “F1 boss has sick Nazi orgy
with 5 hookers”. The article opened with the sentence, “Formula
1 motor racing chief Max Mosley is today exposed as a secret
sadomasochistic sex pervert”. Several pages inside the
newspaper were also devoted to the story, which included still
photographs taken from video footage secretly recorded by one of the
participants in the sexual activities, who was paid in advance to do
so. An edited extract of the video as well as still images were
also published on the newspaper’s website and reproduced
elsewhere on the internet. The print version of the newspaper
invited readers to view the video, providing the website address of
the newspaper.
Later that same day, the applicant’s solicitors
made a complaint to the News of the World regarding the video
footage available on the website. The next day, 31 March 2008, the
edited footage was voluntarily removed from the website and an
undertaking was given that it would not be shown again without 24
hours’ notice. Such notice was given by letter dated 3 April
2008 and faxed at 1.19 p.m. that day.
The edited video footage was viewed over 1.4 million
times over 30 and 31 March 2008. The online version of the
article was visited over 400,000 times during the same period. The
print version of the News of the World has an average
circulation of over three million copies.
On 4 April 2008 the applicant commenced legal
proceedings against News Group Newspapers Limited claiming damages
for breach of confidence and invasion of privacy. Although he did not
dispute that the sexual activities had taken place, he contested the
characterisation of his activities as being Nazi role-play. He also
sought an injunction to restrain the News of the World from
making available on its website the edited video footage.
On 6 April 2008 a second series of articles on the
applicant’s sexual activities was published in the News of
the World.
On 9 April 2008 Mr Justice Eady, in the High Court, [2008] EWHC 687 (QB,
refused to grant an injunction because the material was no longer
private by reason of its extensive publication in print and on the
internet.
In assessing the approach to be taken by the court to
the granting of an interim injunction, he noted that the following
principles should be borne in mind in any case where it was sought to
restrain publication on the basis of an alleged infringement of
rights guaranteed by Article 8, and where those rights came into
conflict with the rights of other persons, and in particular the
rights of the media to freedom of expression:
“28... 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.”
He continued:
“29. Here there is no doubt that the rights of Mr
Mosley under Article 8 come into conflict with those of the
Respondent company under Article 10. One question which has to be
answered is whether, in respect of the information contained in the
edited footage, Mr Mosley any longer has a reasonable expectation of
privacy, having regard to everything which has happened since the
original publication.”
Eady J considered that there was no public interest in
publication of the images powerful enough to override the applicant’s
prima facie right to be protected in respect of the intrusive
and demeaning nature of the photographs, observing:
“ 30. ... The only reason why these pictures are
of interest is because they are mildly salacious and provide an
opportunity to have a snigger at the expense of the participants.
Insofar as the public was ever entitled to know about Mr Mosley’s
sexual tastes at all, the matter has already been done to death since
the original coverage in the News of the World. There is no
legitimate element of public interest which would be served by the
additional disclosure of the edited footage, at this stage, on the
Respondent’s website.”
However, as to the extent of the applicant’s
reasonable expectation of privacy, Eady J noted that the material had
been seen by thousands of people around the world and that it
continued to be available. He went on:
“33. ... The Court must always be conscious of the
practical realities and limitations as to what can be achieved ...
Nevertheless, a point may be reached where the information
sought to be restricted, by an order of the Court, is so widely and
generally accessible ‘in the public domain’ that such an
injunction would make no practical difference.
34. As Mr Millar [for News Group Newspapers Limited] has
pointed out, if someone wishes to search on the Internet for the
content of the edited footage, there are various ways to access it
notwithstanding any order the Court may choose to make imposing
limits on the content of the News of the World website. The
Court should guard against slipping into playing the role of King
Canute. Even though an order may be desirable for the protection of
privacy, and may be made in accordance with the principles currently
being applied by the courts, there may come a point where it would
simply serve no useful purpose and would merely be characterised, in
the traditional terminology, as a brutum fulmen. It is
inappropriate for the Court to make vain gestures.”
He concluded that the material was so widely
accessible that an order in the terms sought would make very little
practical difference, noting:
“36. ... The dam has effectively burst. 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 edited video footage was restored to the News
of the World website shortly afterwards.
In the course of the subsequent privacy proceedings
before the High Court, the court heard evidence from the editor of
the News of the World. As to the reasons for providing no
advance warning to the applicant of the imminent publication of the
story, the following exchange took place:
“Q: Your third reason was the risk of an interim
injunction, and that was the real reason, was it not?
A: That was a major concern, yes.
Q: You were worried that the court might grant an
injunction.
A: It was a consideration, yes.
...
Q: So you did recognise that there was a real risk that
a court would take the view, on an interim basis, that this intrusion
on privacy was not justified?
A: It is a risk all newspapers are faced with these
days.
Q: What is the matter with letting the court make the
decision? Is that not the way democratic societies work; that one
person says it is not an intrusion of privacy and the other says it
is? ... There is nothing wrong with an impartial judge looking at it
is there?
A: No. It happens a lot.
Q: But you were not prepared to risk that on this
occasion?
A: On this occasion.”
On 24 July 2008 judgment, [2008] EWHC 1777 (QB), was handed down in the
privacy proceedings.
Regarding the allegations in the articles that there
was a Nazi theme, Eady J noted that once the material had been
obtained, it was not properly checked for Nazi content and that the
German was not even translated. Instead, those concerned were simply
content to rely on general impressions, which Eady J considered to be
“hardly satisfactory” having regard to the devastating
impact the publication would have on all those involved and to the
gravity of the allegations, especially that of mocking the treatment
given to concentration camp inmates. He was prepared to accept
that the journalist responsible for the story and the editor thought
there was a Nazi element, not least because that was what they wanted
to believe. He concluded:
“170. The belief was not arrived at, however, by
rational analysis of the material before them. Rather, it was a
precipitate conclusion that was reached ‘in the round’,
as Mr Thurlbeck [the journalist] put it. The countervailing
factors, in particular the absence of any specifically Nazi indicia,
were not considered. When Mr Myler [the editor] was taken at
length through dozens of photographs, some of which he had seen prior
to publication, he had to admit in the witness box that there were no
Nazi indicia and he could, of course, point to nothing which would
justify the suggestion of ‘mocking’ concentration camp
victims. That conclusion could, and should, have been reached before
publication. I consider that this willingness to believe in the Nazi
element and the mocking of Holocaust victims was not based on
enquiries or analysis consistent with ‘responsible journalism’
... [T]he judgment was made in a manner that could be characterised,
at least, as ‘casual’ and ‘cavalier’.”
Eady J went on to consider the newspaper’s
assessment, prior to publication, of the lawfulness of publishing the
articles. He observed that, in the context of privacy, there was a
good deal of scope for differing assessments to be made on issues
such as whether there was a reasonable expectation of privacy or a
genuine public interest to justify intrusion. He considered that
he was not in a position to accept the applicant’s submission
that any of the relevant individuals must have known at the time that
the publication would be unlawful in the sense that no public
interest defence could succeed, nor could he conclude that they were
genuinely indifferent to whether there was a public interest defence.
While, he said, they may not have given it close analysis and one
could no doubt criticise the quality of the journalism which led to
the coverage actually given, that was not the same as genuine
indifference to the lawfulness of this conduct. He noted:
“209. It is also clear that one of the main
reasons for keeping the story ‘under wraps’ until the
last possible moment was to avoid the possibility of an interlocutory
injunction. That would avoid delaying publication and, in a privacy
context, would generally mean that a potential claimant would not
trouble to institute any legal proceedings at all. Once the cat is
out of the bag, and the intrusive publication has occurred, most
people would think there was little to gain. Even so, it would not be
right to equate such tactics with deliberately or recklessly
committing a wrong.”
Eady J concluded that the newspaper articles and
images constituted a breach of the applicant’s right to
privacy. He found that there were no Nazi connotations in the
applicant’s sexual activities and that there was therefore no
public interest or justification in the publication of the article
about his personal life and the accompanying images.
On the question of damages, Eady J declined to award
exemplary damages and limited the damages available to a compensatory
award. He considered it questionable whether deterrence should
have a distinct, as opposed to a merely incidental, role to play in
the award of compensatory damages, noting that it was a notion more
naturally associated with punishment. He further observed that if
damages were paid to an individual for the purpose of deterring the
defendant it would naturally be seen as an undeserved windfall. He
added that if damages for deterrence were to have any prospect of
success it would be necessary to take into account the means of the
relevant defendant. Any award against the News of the World
would have to be so large that it would fail the test of
proportionality when seen as fulfilling a compensatory function and
would risk having a “chilling effect” on freedom of
expression.
Eady J recognised that the sum awarded would not
constitute adequate redress, noting:
“230. ... I have already emphasised that injury to
reputation is not a directly relevant factor, but it is also to be
remembered that libel damages can achieve one objective that is
impossible in privacy cases. Whereas reputation can be vindicated by
an award of damages, in the sense that the claimant can be restored
to the esteem in which he was previously held, that is not possible
where embarrassing personal information has been released for general
publication. As the media are well aware, once privacy has been
infringed, the damage is done and the embarrassment is only augmented
by pursuing a court action. Claimants with the degree of resolve (and
financial resources) of Mr Max Mosley are likely to be few and far
between. Thus, if journalists successfully avoid the grant of an
interlocutory injunction, they can usually relax in the knowledge
that intrusive coverage of someone’s sex life will carry no
adverse consequences for them and (as Mr Thurlbeck put it in his 2
April email) that the news agenda will move on.
231. Notwithstanding all this, it has to be accepted
that an infringement of privacy cannot ever be effectively
compensated by a monetary award. Judges cannot achieve what is, in
the nature of things, impossible. That unpalatable fact cannot be
mitigated by simply adding a few noughts to the number first thought
of. Accordingly, it seems to me that the only realistic course is to
select a figure which marks the fact that an unlawful intrusion has
taken place while affording some degree of solatium to the
injured party. That is all that can be done in circumstances where
the traditional object of restitutio is not available. At the
same time, the figure selected should not be such that it could be
interpreted as minimising the scale of the wrong done or the damage
it has caused.”
The applicant was awarded GBP 60,000 in damages and
recovered approximately GBP 420,000 in costs. The judge noted that
the applicant was hardly exaggerating when he said that his life was
ruined. A final injunction was granted against the newspaper.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Press Complaints Commission
The Press Complaints Commission (“PCC”) is
an independent body set up to examine complaints about the editorial
content of newspapers and magazines, and their websites, in the
United Kingdom. If a complaint is upheld, a public ruling will be
issued by the PCC and the newspaper or magazine concerned is obliged
to publish the critical ruling in full and with due prominence.
On 18 November 2008 the PCC upheld a complaint by Mr
P. Burrell that the News of the World had published an article
about him which was inaccurate, in breach of clause 1 of the Editors’
Code of Practice (see further paragraph 31 below). The newspaper had
failed to approach him for comments prior to publication. In its
adjudication, the PCC noted:
“The [PCC] has previously said that failure to
contact the subjects of articles before publication – while not
obligatory – may constitute a lack of care under Clause 1 in
some circumstances. It has never said that people have no right ever
to comment on a story, or to be offered a right of reply, if they
have misled people in another context.
The [PCC] was also aware of the newspaper’s
concerns about an undeserved injunction being granted. However, it
did not consider that this meant that the requirements of the Code
did not apply. Given the nature of the story, and how the newspaper
wished to present it, the inclusion of the complainant’s
comments was necessary to avoid breaching the Code.
...
It has never been an absolute requirement for newspapers
to contact those who are about to feature in articles. This would be
impractical for a number of reasons: often there will be no dispute
about the facts, or the information will be innocuous; the volume of
people mentioned in straightforward stories would make it impossible;
and legitimate investigations might on some occasions be compromised
by such a rule. However, in this case the newspaper made the wrong
decision and the complaint was upheld.”
B. Codes of Practice
1. The Editors’ Code of Practice
The PCC is responsible for ratifying and enforcing the
Editors’ Code of Practice (“the Editors’ Code”).
The Editors’ Code is regularly reviewed and amended as
required. Clause 1 of the Editors’ Code provides, inter
alia, that the press must take care not to publish inaccurate,
misleading or distorted information, including pictures.
Clause 3 of the Editors’ Code deals with
privacy. At the relevant time, it provided as follows:
“3. *Privacy
i) Everyone is entitled to respect for his or her
private and family life, home, health and correspondence, including
digital communications. Editors will be expected to justify
intrusions into any individual’s private life without consent.
ii) It is unacceptable to photograph individuals in a
private place without their consent.
Note - Private places are public or private property
where there is a reasonable expectation of privacy.”
Clause 10 of the Editors’ Code sets out
provisions on clandestine recordings:
“10 *Clandestine devices and subterfuge
i) The press must not seek to obtain or publish
material acquired by using hidden cameras or clandestine listening
devices; or by intercepting private or mobile telephone calls,
messages or emails; or by the unauthorised removal of documents or
photographs; or by accessing digitally-held private information
without consent.
ii) Engaging in misrepresentation or subterfuge,
including by agents or intermediaries, can generally be justified
only in the public interest and then only when the material cannot be
obtained by other means.”
At the relevant time, the “public interest”
was explained in the Editors’ Code as follows:
“There may be exceptions to the clauses marked *
where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an
action or statement of an individual or organisation.
2. There is a public interest in freedom of expression
itself.
3. Whenever the public interest is invoked, the PCC will
require editors to demonstrate fully how the public interest was
served.
4. The PCC will consider the extent to which material is
already in the public domain, or will become so.
...”
Paragraph 3 was amended in October 2009 to provide:
“Whenever
the public interest is invoked, the PCC will require editors to
demonstrate fully that they reasonably believed that publication, or
journalistic activity undertaken with a view to publication, would be
in the public interest.”
The Editors’
Codebook accompanies the Editors’ Code
and is intended to provide guidance as to compliance with the Code’s
provisions. It underwent major revision in January 2011, providing
updates on prior notification and “public interest”. As
regards prior notification, it now explains:
“There
is wide agreement that prior notification of the subjects of stories
ahead of publication, while often desirable, could not – and
should not – be obligatory. It would be impractical, often
unnecessary, impossible to achieve, and could jeopardise legitimate
investigations. Yet, at the same time, a failure to include relevant
sides of the story can lead to inaccuracy and breach the Code. The
PCC has set out guidance on how to square this circle:
1. If there is
no doubt about the story’s truth, it is unlikely that a failure
to approach those involved for comment prior to publication will lead
to a breach of Clause 1 of the Code [on accuracy];
2. Where
information has come from a source (especially an anonymous one), it
may be prudent to seek the ‘other side of the story’
before the article appears;
...”
As to the
“public interest” test, the Codebook notes:
“In judging publications’
claims that otherwise prohibited information or methods were
justifiable in the public interest, both the Code and the PCC set
high thresholds. The burden is on the editor to demonstrate fully
how the public interest was served.”
It provides
details of previous rulings of the PCC on the question of the “public
interest” and identifies key questions as:
“Was it
reasonable to believe that publication or journalistic activity would
have served the public interest? The PCC would require a full
explanation showing that the grounds were genuine and sound in the
circumstances.
If clandestine
methods, subterfuge, harassment or payments to criminals or witnesses
are involved, could the information have been obtained by other
means?
Is the
information in the public domain, or likely to become so?
If children
are involved, is the public interest in publication exceptional?”
2. The Ofcom
Broadcasting Code
Broadcasters
are subject to the Ofcom Broadcasting Code (“the Ofcom Code”).
Section 7 of the Ofcom Code deals with fairness and provides, inter
alia:
“7.9
Before broadcasting a factual programme, including
programmes examining past events, broadcasters should take reasonable
care to satisfy themselves that:
...
Principle 8
of the Ofcom Code addresses the need to avoid any unwarranted
infringement of privacy in programmes and in connection with
obtaining material included in programmes.
C. Remedies for publication of private information
Under English law, a number of remedies are available
in cases of misuse of private information. An injunction can be
sought to restrain publication of the private material. Damages are
also available to compensate for the injury caused by any intrusive
publication, including aggravated damages where additional features
of the intrusion or the defendant’s post-publication conduct
makes the original injury worse. An alternative to damages is an
account of the profits made by the defendant. The court can also
order delivery-up of the offending material.
Further protection is offered by the Data Protection
Act 1998, which makes provision for the regulation of
the processing of information relating to individuals, including the
obtaining, holding, use or disclosure of such information. It
sets out in a schedule eight data protection principles which must be
observed by data controllers in the United Kingdom. These principles
include the principles that personal data shall be
processed fairly and lawfully; that personal data shall be obtained
only for one or more specified and lawful purposes; that personal
data shall be adequate, relevant and not excessive in relation to the
purpose for which they are processed; that personal data shall be
accurate and up to date; and that personal data shall be processed in
accordance with the rights of data subjects under the Act. Further
requirements are stipulated in respect of “sensitive
personal data”, which includes information as to a person’s
sexual life.
However, section 32(1) of the Act provides a “public
interest” exemption from the data protection principles where
information is processed for journalism purposes:
“Personal data which are processed
only for the special purposes are exempt from any provision to which
this subsection relates if—
(a) the processing is undertaken with a
view to the publication by any person of any journalistic, literary
or artistic material,
(b) the data controller reasonably
believes that, having regard in particular to the special importance
of the public interest in freedom of expression, publication would be
in the public interest, and
(c) the data controller reasonably
believes that, in all the circumstances, compliance with that
provision is incompatible with the special purposes.”
Section 3 defines “the special purposes”
as including the “purposes of journalism”. Section 32(2)
provides that the exemption relates to the data
protection principles, except the seventh data protection principle
which sets out the need for appropriate
technical and organisational measures to be
taken against unauthorised or unlawful
processing of personal data and against accidental loss or
destruction of, or damage to, personal data.
Section 32(3) provides that compliance with
any code of practice is relevant to the assessment of whether there
was a reasonable belief that publication would be in the public
interest.
45. Section 13 of the Act entitles
a data subject to apply for compensation where there has been a
contravention of the requirements of the Act and section 14 allows
him to apply for rectification, erasure or destruction of personal
data.
D. Interim injunctions
The position as regards interim injunctions under
English law was set out in the case of American Cyanamid Co. v.
Ethicon Ltd ([1975] AC 396). In particular, a claimant
seeking an interim injunction was required to show that he had a
“seriously arguable case” to be tried. Once this had been
shown, it was for the courts to decide where the balance of
convenience lay between the case for granting the injunction and that
of leaving the applicant to his remedy of damages. If there were
doubts as to the adequacy of a remedy in damages, the preservation of
the status quo often prevailed, with the result that an
interim injunction would be granted.
The position in cases engaging the right to freedom of
expression was subsequently amended with the entry into force of the
Human Rights Act 1998. Section 12 of the Act provides:
“(1) This section applies if a
court is considering whether to grant any relief which, if granted,
might affect the exercise of the Convention right to freedom of
expression.
(2) If the person against whom the
application for relief is made (‘the
respondent’) is neither present nor represented, no such relief
is to be granted unless the court is satisfied—
(a) that the applicant has taken all practicable steps
to notify the respondent; or
(b) that there are compelling reasons why the respondent
should not be notified.
(3) No such
relief is to be granted so as to restrain publication before trial
unless the court is satisfied that the applicant is likely to
establish that publication should not be allowed.
(4) The court must have particular regard to the
importance of the Convention right to freedom of expression and,
where the proceedings relate to material which the respondent claims,
or which appears to the court, to be journalistic, literary or
artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available
to the public; or
(ii) it is, or would be, in the public interest for the
material to be published;
(b) any relevant privacy code.”
The effect of the Human Rights Act, in particular
section 12(3), was considered by the House of Lords in Cream
Holdings Limited and others v. Banerjee and others [2004] UKHL 44. Lord Nicholls of Birkenhead observed that:
“15. When the Human Rights Bill was under
consideration by Parliament concern was expressed at the adverse
impact the Bill might have on the freedom of the press. Article 8 of
the European Convention, guaranteeing the right to respect for
private life, was among the Convention rights to which the
legislation would give effect. The concern was that, applying
the conventional American Cyanamid approach, orders imposing
prior restraint on newspapers might readily be granted by the courts
to preserve the status quo until trial whenever applicants claimed
that a threatened publication would infringe their rights under
article 8. Section 12(3) was enacted to allay these fears. Its
principal purpose was to buttress the protection afforded to freedom
of speech at the interlocutory stage. It sought to do so by setting a
higher threshold for the grant of interlocutory injunctions against
the media than the American Cyanamid guideline of a ‘serious
question to be tried’ or a ‘real prospect’ of
success at the trial.”
He concluded that:
“22. Section 12(3) makes the likelihood of success
at the trial an essential element in the court’s consideration
of whether to make an interim order. But in order to achieve the
necessary flexibility the degree of likelihood of success at the
trial needed to satisfy section 12(3) must depend on the
circumstances. There can be no single, rigid standard governing all
applications for interim restraint orders. Rather, on its proper
construction the effect of section 12(3) is that the court is not to
make an interim restraint order unless satisfied the applicant’s
prospects of success at the trial are sufficiently favourable to
justify such an order being made in the particular circumstances of
the case. As to what degree of likelihood makes the prospects of
success ‘sufficiently favourable’, the general approach
should be that courts will be exceedingly slow to make interim
restraint orders where the applicant has not satisfied the court he
will probably (‘more likely than not’) succeed at the
trial. In general, that should be the threshold an applicant must
cross before the court embarks on exercising its discretion, duly
taking into account the relevant jurisprudence on article 10 and any
countervailing Convention rights. But there will be cases where it is
necessary for a court to depart from this general approach and a
lesser degree of likelihood will suffice as a prerequisite.
Circumstances where this may be so include those mentioned above:
where the potential adverse consequences of disclosure are
particularly grave, or where a short-lived injunction is needed to
enable the court to hear and give proper consideration to an
application for interim relief pending the trial or any relevant
appeal.”
Subsequently, in Douglas & Ors v Hello! Ltd &
Ors ([2005] EWCA Civ 595), the Court of Appeal noted:
“258. Of course, as recently emphasised by the
House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining
publication has to satisfy a particularly high threshold test, in
light of section 12(3) of the Human Rights Act 1998.”
E. The House of Commons Culture, Media and Sport
Committee
On 9 February 2010 the House of Commons Culture, Media
and Sport Committee (“the Select Committee”) published a
report on Press standards, privacy and libel (2nd Report of
Session 2009-10, HC 362-I). The report was prepared following receipt
of written submissions and the hearing of oral evidence from a number
of stakeholders, including the applicant and the editor of the News
of the World. A chapter of the report was dedicated to examining
privacy and breach of confidence. As regards the evidence received on
the need for a rule of pre-notification, the report noted:
“82. In his own case, Mr Mosley stated that he
would certainly have sought an injunction if he had had advance
notification of the News of the World’s intention to
publish. Mr Myler [the editor of the News of the World] told
us that he and his colleagues at the newspaper were conscious of
this: ‘we knew that probably Mr Mosley would get an
injunction, and I felt very strongly that this was a story that
actually should not be stopped because of an injunction’.”
According to the evidence received by the Select
Committee, journalists contacted the subjects of their articles prior
to publication in the great majority of cases. However, there was
some evidence before the Select Committee that editors sometimes took
a calculated risk not to contact a subject because they knew or
suspected that an injunction would be imposed in respect of an
intended publication.The report noted:
“91. Clearly pre-notification, in the form of
giving opportunity to comment, is the norm across the industry.
Nevertheless we were surprised to learn that the PCC does not provide
any guidance on pre-notification. Giving subjects of articles the
opportunity to comment is often crucial to fair and balanced
reporting, and there needs to be explicit provision in the PCC Code
itself.”
The Select Committee recommended that the Editors’
Code be amended to include a requirement that journalists should
normally notify the subject of their articles prior to publication,
subject to a “public interest” exception, and that
guidance for journalists and editors on pre-notifying should be
included in the Editors’ Codebook.
As to the need for a legally binding pre-notification
requirement, the Select Committee concluded that:
“93. ... a legal or unconditional requirement to
pre-notify would be ineffective, due to what we accept is the need
for a ‘public interest’ exception. Instead we believe
that it would be appropriate to encourage editors and journalists to
notify in advance the subject of a critical story or report by
permitting courts to take account of any failure to notify when
assessing damages in any subsequent proceedings for breach of
Article 8. We therefore recommend that the Ministry of Justice
should amend the Civil Procedure Rules to make failure to pre-notify
an aggravating factor in assessing damages in a breach of Article 8.
We further suggest that amendment to the Rules should stipulate that
no entitlement to aggravated damages arises in cases where there is a
public interest in the release of that private information.”
III. RELEVANT
INTERNATIONAL MATERIALS
A. Relevant Council of Europe texts
1. The Parliamentary Assembly of the Council of Europe
On 23 January 1970, the
Parliamentary Assembly of the Council of Europe adopted Resolution
428, containing a declaration on mass communication media and human
rights. As regards the duty of the press to act responsibly, the
declaration indicated that it would be desirable to put in place:
“(a) professional training for
journalists under the responsibility of editors and journalists;
(b) a professional code of ethics for journalists ; this
should cover inter alia such matters as accurate and well balanced
reporting, rectification of inaccurate information, clear distinction
between reported information and comments, avoidance of calumny,
respect for privacy, respect for the right to a fair trial as
guaranteed by Article 6 of the European Convention on Human Rights;
(c) press councils empowered to
investigate and even to censure instances of unprofessional conduct
with a view to the exercising of self-control by the press itself.”
The declaration also noted that
there was an area in which the exercise of the right of freedom of
expression might conflict with the right to privacy protected by
Article 8, and that the exercise of the former right should not be
allowed to destroy the existence of the latter. It observed that the
right to privacy consisted essentially in the right to live one’s
own life with a minimum of interference and concerned private, family
and home life, physical and moral integrity, honour
and reputation, avoidance of being placed in a false light,
non-revelation of irrelevant and embarrassing facts, unauthorised
publication of private photographs, protection against misuse of
private communications and protection from disclosure of information
given or received by the individual confidentially. The declaration
also stated that the right to privacy afforded by Article 8 should
not only protect an individual against interference by public
authorities, but also against interference by private persons or
institutions, including the mass media, and that national legislation
should guarantee this protection
On 26 June 1998 the Parliamentary
Assembly adopted a further resolution, Resolution 1165, on the right
to privacy, focusing on public figures. The Resolution noted that
personal privacy was often invaded, even in countries with specific
legislation to protect it, as people’s private lives had become
a highly lucrative commodity for certain sectors of the media.
It continued:
“8. It is often in the name of a one-sided
interpretation of the right to freedom of expression, which is
guaranteed in Article 10 of the European Convention on Human Rights,
that the media invade people’s privacy, claiming that their
readers are entitled to know everything about public figures.
9. Certain facts relating to the private lives of public
figures, particularly politicians, may indeed be of interest to
citizens, and it may therefore be legitimate for readers, who are
also voters, to be informed of those facts.
10. It is therefore necessary to find a way of balancing
the exercise of two fundamental rights, both of which are guaranteed
in the European Convention on Human Rights: the right to respect for
one’s private life and the right to freedom of expression.
The resolution reaffirmed the importance of every
person’s right to privacy and of the right to freedom of
expression as fundamental to a democratic society. It noted that
these rights were neither absolute nor in any hierarchical order,
since they were of equal value. Further, the right to privacy
afforded by Article 8 required protection against interference by
private persons or institutions, including the mass media. The
resolution also set out specific guidelines on the necessary content
of national legislation:
“i. the possibility of taking an action under
civil law should be guaranteed, to enable a victim to claim possible
damages for invasion of privacy;
ii. editors and journalists should be rendered liable
for invasions of privacy by their publications, as they are for
libel;
...
iv. economic penalties should be envisaged for
publishing groups which systematically invade people’s privacy;
...
vii. provision should be made for anyone who knows that
information or images relating to his or her private life are about
to be disseminated to initiate emergency judicial proceedings, such
as summary applications for an interim order or an injunction
postponing the dissemination of the information, subject to an
assessment by the court as to the merits of the claim of an invasion
of privacy;
viii. the media should be encouraged to create their own
guidelines for publication and to set up an institute with which an
individual can lodge complaints of invasion of privacy and demand
that a rectification be published.”
On 3 October 2008 Resolution 1636 (2008) on indicators
for media in a democracy was adopted by the
Parliamentary Assembly. It recalled the importance of freedom of
expression of the press in a democracy and called on member States to
assess their national media legislation bearing in mind the basic
principle that there should be a system of media
self-regulation including a right of reply and correction or
voluntary apologies by journalists and that journalists should set up
their own professional codes of conduct and that they should be
applied.
2. The Committee of Ministers
At
the Sixth European Ministerial Conference on Mass Media Policy in
Cracow, 15-16 June 2000, the participating Ministers adopted a
declaration on “A media policy for tomorrow”. In the
declaration, the representatives of the Contracting States agreed on
a programme of action at pan-European level, to be implemented by the
Steering Committee on Mass Media (“CDMM”). The programme
of action included the following provisions:
“I. Activities relating to the balance between
freedom of expression and information and other rights and legitimate
interests
The CDMM should:
- step up its work on the balance between freedom of
expression and information and the right to privacy;
- complete the work on the disclosure of information and
the expression of opinions about political figures and public
officials, the disclosure of information in the public interest, as
well as media reporting on legal proceedings, so as to define common
orientations for the whole of Europe as speedily as possible;
- examine the problems caused by the dissemination of
material casting doubt on individuals’ dignity and integrity,
even in the traditional media;
- examine the implications of the on-line dissemination
of information by individuals or other sources which may not be bound
by professional journalistic ethics or codes of conduct.”
Following
the adoption of the programme of action, the CDMM established a Group
of Specialists on freedom of expression and other fundamental rights
(“MM-S-FR”). The MM-S-FR prepared a draft declaration of
the Committee of Ministers on freedom of expression and the right to
respect for private life which was reviewed by the CDMM at its
meetings of 10 July 2003 and 21 January 2004. However, the CCDM did
not invite the Committee of Ministers to adopt the declaration.
B. Law and practice in Council of Europe member States
According to the information provided by the parties
or otherwise available to the Court, there is no pre-notification
requirement as such in any of the legal systems of the Contracting
Parties. However, some member States require the subject’s
consent to publication of material relating to private life, in many
cases subject to some form of “public interest”
exception. Thus the failure to obtain consent may have legal
consequences in any subsequent civil proceedings commenced by the
subject of the publication.
A number of member States have adopted codes of
practice, generally not binding, which also contain some form of
consent requirement.
C. Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free movement of
such data (“the EC Directive”)
The EC Directive was adopted in order to ensure
adequate protection for personal data. It applies to the 27 Member
States of the European Union. It was transposed in the United Kingdom
through the Data Protection Act 1998 (see paragraphs 42-45 above).
There is no reference in the EC Directive to the need to provide
for a pre-notification requirement in privacy cases.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE
CONVENTION
The
applicant complained that the United Kingdom had violated its
positive obligations under Article 8 of the Convention, taken alone
and taken together with Article 13, by failing to impose a legal duty
on the News of the World to notify him in advance in
order to allow him the opportunity to seek an interim injunction and
thus prevent publication of material which violated his right to
respect for his private life. The Government contested that
argument
In
the Court’s view, the complaint under Article 13 as to the
absence of an effective domestic remedy is a reformulation of the
applicant’s complaint under Article 8 of the Convention that
the respondent State did not ensure respect for the applicant’s
private life, and is subsidiary to it (see Armonienė v.
Lithuania, no. 36919/02, § 23, 25 November 2008, BAILII: [2008] ECHR 1526 ; and Biriuk
v. Lithuania, no. 23373/03, § 23, 25 November 2008, BAILII: [2008] ECHR 1528). The
Court accordingly considers it appropriate to analyse the applicant’s
complaints solely under Article 8 of the Convention, which reads in
so far as relevant as follows:
“1. Everyone has the right to respect
for his private and family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
1. Victim status
a. The parties’ submissions
The
Government considered that the applicant was no longer a victim of
any violation of the Convention. They noted that he had successfully
pursued domestic proceedings and was awarded the sum of GBP 60,000 in
damages and recovered GBP 420,000 in costs (see paragraph 28
above). They concluded that he had obtained a remedy before the
domestic courts and considered that remedy to constitute adequate and
proportionate reparation for the harm he had suffered.
They emphasised that the damages awarded in his case were the
highest to date in the United Kingdom for an invasion of privacy. The
Government further noted that the applicant had recovered damages in
other jurisdictions and that it seemed that he had outstanding
proceedings in the United Kingdom and elsewhere in respect of
the same or similar publications. These included proceedings in
Germany, which settled for EUR 250,000, and civil and criminal
proceedings in France and Italy regarding the publication which was
the subject of the English proceedings.
The
Government also emphasised that since commencing his legal action
against the News of the World, the applicant had sought and obtained
a high profile in the United Kingdom as a champion of privacy rights
and, in that context, had submitted evidence to Parliament and had
participated in a number of press and media interviews. They
questioned whether the effect of the publication was as detrimental
to the applicant as he claimed.
The
applicant insisted that he remained a victim of a violation of the
Convention notwithstanding the damages award in the domestic
proceedings. He argued that damages were not an adequate remedy where
private and embarrassing personal facts and intimate photographs were
deliberately exposed to the public in print and on the internet.
This information could never be expunged from the minds of the
millions of people who had read or seen the material and privacy
could not be restored to him by an award of damages. The only
effective remedy in his case would have been an injunction, a remedy
which he was denied by the failure of the newspaper to notify him in
advance. Similarly, actions taken in other jurisdictions did not
remove his victim status. Such actions were aimed at requiring media
and internet websites to remove explicit or highly personal
information repeated or taken from the original publication by the
News of the World. Indeed, his efforts in this regard were
evidence of how persistent and damaging the breach of his privacy had
been.
Finally,
the applicant argued that any implication that he had not suffered
from the breach of his privacy was both absurd and offensive. He
pointed to the intimate nature of the material disclosed and the
humiliation occasioned by its public disclosure, as well as to the
impact of the publication on his family.
b. The Court’s assessment
The
Court accepts that the publication of the articles, photographs and
video images of the applicant participating in sexual acts had a
significant impact on the applicant’s right to respect for his
private life. The fact that, following the widespread
dissemination of the material (see paragraph 11 above), the
applicant has chosen to pursue what he perceives to be a necessary
change in the law does not lessen the extent of any humiliation or
injury suffered by him as a result of the original exposure of the
material.
The Court notes the unusual nature of the applicant’s
complaint. Having won his case at domestic level and obtained
damages, his argument before this Court is directed at the prevailing
situation in the United Kingdom in which there is no legal
requirement to pre-notify the subject of an article which discloses
material related to his private life. Whether or not Article 8
requires, as the applicant has contended, the United Kingdom to put
in place a legally binding pre-notification requirement is a matter
to be considered in the context of the merits of the case. However,
it is clear that no sum of money awarded after disclosure of the
impugned material could afford a remedy in respect of the specific
complaint advanced by the applicant.
In
light of the above, the Court finds that the applicant can claim to
be a victim in light of the specific nature of his complaint under
Article 8 of the Convention.
2. Exhaustion of domestic remedies
a. The parties’ submissions
The
Government argued that in so far as the applicant sought to claim
that the damages awarded in the domestic proceedings were not
adequate, he had failed to exhaust domestic remedies as he did not
appeal the judge’s ruling on exemplary damages. They further
relied on the fact that the applicant had elected to pursue a remedy
in damages, rather than an account of profits. Finally, they noted
that the applicant had failed to bring any proceedings under the Data
Protection Act 1998 (see paragraphs 42-45 above), which would have
allowed him to complain about the unauthorised processing of his
personal information and to seek rectification or destruction of his
personal data.
The
applicant reiterated that he was not seeking further damages from the
newspaper but was making a complaint about the absence of a law which
would have prevented publication of the article which violated his
right to respect for private life. Accordingly, the additional
remedies proposed by the Government were, in his submission,
irrelevant to his complaint.
b. The Court’s assessment
The
Court reiterates the unusual nature of the applicant’s
complaint in the present case (see paragraph 72 above). None of the
remedies on which the Government rely could address his specific
complaint regarding the absence of a law requiring pre-notification.
They are therefore not to be considered remedies which the applicant
was required to exhaust before lodging his complaint with this Court.
The
Government’s objection is accordingly dismissed.
3. Conclusion
The
Court has dismissed the Government’s objections as to the
applicant’s victim status and exhaustion of domestic remedies.
It notes that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties’ submissions
a. The applicant
The
applicant argued that a positive obligation could arise under Article
8 of the Convention even in the sphere of the relations of
individuals between themselves. In the present case, he contended,
the respondent State had an obligation to enable him to apply for an
injunction by requiring that he be notified prior to publication of
an article which interfered with his private life. The applicant
emphasised that in his case details of the most intimate parts of his
private life were published on the front page, and in several inside
pages, of a newspaper with an estimated readership of approximately
ten million people in the United Kingdom. Highly intrusive images
made by means of secret recordings were also posted on the
newspaper’s website and inevitably reproduced elsewhere on the
internet. The applicant considered that the judgment of Eady J made
it clear that had he had an opportunity to apply for an injunction,
an injunction would have been granted (see paragraphs 17-18 above).
In
support of his argument that the law should provide for an
opportunity to seek an injunction, the applicant emphasised, first,
that where a conflict arose between competing interests under Article
8 and Article 10, it was for the courts and not the newspapers to
resolve it. He highlighted the dangers of allowing journalists to be
the sole judges as to where the balance between the right to freedom
of expression and the right to respect for private life lay, as, he
claimed, the British press were largely hostile both to the need to
protect private life and to the interpretation of that right by the
judiciary. Further, he considered that as the law currently stood,
editors were encouraged not to notify subjects as, once an article
had been published, subjects often decided not to bring legal
proceedings for fear of attracting further publicity in respect of
the invariably embarrassing or damaging details about their private
lives. Second, the applicant argued that where the resolution of the
conflict between Articles 8 and 10 occurred only after publication,
there was insufficient protection for private life because, once
lost, privacy could not be regained. Referring to the judgment of
Eady J (see paragraph 27 above), the applicant noted that in
defamation cases, it was a complete defence to prove the truth of the
published material and that, as a result, damage done to reputation
could be removed by proving that the allegations were false. However,
the same could not be said in relation to privacy, which was
inherently perishable and therefore could not be restored to the
victim of the interference. Further, he was of the view that section
12 of the Human Rights Act 1998 provided significant protection for
newspapers’ right to freedom of expression by setting a high
threshold before an interim injunction would be granted (see
paragraphs 47-50 above). He emphasised that pursuant to the Court’s
jurisprudence on Article 10, there was a need for newspapers claiming
protection to comply with the requirements of responsible journalism.
In his view, these requirements included a pre-notification
requirement.
The
applicant accepted that the respondent State had a margin of
appreciation but contended that it related solely to the scope or
efficacy of any pre-notification requirement. His complaint was not
that he had received some warning but not enough; rather, he had
received no warning at all. He considered that the absence of a
uniform approach in other Contracting Parties requiring
pre-notification was not decisive. He pointed to the fact that in a
number of States, consent played an important role in the context of
privacy law and contended that where consent was either required for
disclosure or relevant to an assessment of whether the disclosure was
lawful, there was no need for a separate pre-notification
requirement. He further relied on what he called the “unique
nature of the tabloid press” in the United Kingdom,
highlighting the unlawful actions of some tabloid reporters and the
criticisms made by the tabloid press of developing laws on privacy.
While
the applicant agreed that the precise mechanics and scope of any
system of pre-notification was a matter for the discretion of the
respondent State, he considered the difficulties which the Government
claimed would arise, for example, in formulating a pre-notification
obligation, to be illusory or at the very least exaggerated, given in
particular that prior notification already occurred in the vast
majority of cases (see paragraph 52 above). In his view, a
pre-notification obligation in respect of an intended publication
would arise, at the very least, where there were reasonable grounds
to believe that the publication would infringe the right to respect
for private life, having regard to all the circumstances of the case
including any public interest defence. There was nothing unfamiliar
about the legal concept of “reasonable belief”. He
further pointed out that a form of pre-notification was already
envisaged in the Ofcom Code, which imposed an obligation on
broadcasters before broadcasting a factual programme to seek comments
from anyone it would be unfair to exclude (see paragraph 39 above).
The applicant accepted that any system would require
exceptions in certain circumstances to allow for legitimate
situations where it would be either impractical or contrary to the
public interest for the media to notify an individual in advance.
Thus where all practicable steps had been taken to notify or where
there were compelling reasons not to notify, no sanction for a
failure to notify would arise. He disputed that conceptual
difficulties would arise in devising any public interest exception to
the general requirement, pointing to the provision in the Human
Rights Act 1998 that a party seeking an injunction should notify the
media in advance of the application and to the exception for
“compelling reasons” to that
general rule set out in the same Act (see paragraph 47 above).
As
to sanctions, the applicant considered that criminal or regulatory
sanctions were required to enforce the pre-notification requirement
(citing K.U. v. Finland, no. 2872/02, 2 December 2008).
He pointed out that criminal proceedings against newspapers and
editors for alleged contempt of court, obscenity or breaches of the
Official Secrets Acts were possible.
b. The Government
While
the Government accepted that Article 8 could give rise to positive
obligations, they contended that a high threshold had to be crossed
before Article 8 would be engaged in this way. They distinguished
between three types of cases. First, where an applicant had suffered
directly from State inaction, such as non-recognition of
transsexuals, the case for a positive obligation was strong. Second,
where positive action by the State was called for by an applicant to
prevent interference by non-State bodies, such as in environmental
and media cases, positive obligations were less readily invoked.
Third, where an applicant alleged that positive action by individuals
was called for, the extent of any positive obligation under Article 8
was at its weakest. The Government argued that relevant factors in
determining the extent of the positive duty were the extent to which
fundamental and essential aspects of private life were in issue; the
prejudice suffered by the applicant; the breadth and clarity of the
positive obligation sought to be imposed; and the extent of consensus
among Council of Europe member States or internationally. With
reference to these factors, they argued that they had no positive
obligation to protect the applicant’s privacy by providing for
a legally binding pre-notification requirement.
If
there was a positive obligation in the circumstances of the case, the
Government contended that there was a significant margin of
appreciation available to them in deciding where in domestic law to
strike the balance between the requirements of Article 8 and Article
10 and that the current position fell within that range. They argued
that an inevitable consequence of a pre-notification requirement was
that there would be an increase in the number of interim injunctions
granted, which in themselves were a restriction on freedom of
expression and for that reason should be approached with caution.
The
Government pointed out that there was a consistent pattern among
Council of Europe member States against a system of pre notification
and disputed in this regard that the tabloid press in the United
Kingdom was unique in Europe. As to the role of consent in certain
other States, the Government noted that it was not clear whether
consent was a strict requirement in the cases mentioned by the
applicant, nor was it clear whether there were exceptions. In any
case, they considered it questionable whether this approach differed
from the approach in the United Kingdom, where consent would be
a complete defence to any action for invasion of privacy and failure
to pre-notify would be taken into consideration in fixing any damages
award. Further, the Government emphasised that an insistence on
compulsory pre-notification would be to depart from internationally
accepted standards as established by the Council of Europe (see
paragraphs 55-59 above). In this regard, they noted in particular
that the legal position in the United Kingdom complied with the
guidelines set out in Resolution 1165 (see paragraph 58 above).
The
Government also referred to the important role of the PCC and the
Editors’ Code in the system for protection of privacy rights in
the United Kingdom. In particular, they highlighted that the PCC had
recently upheld a complaint where a newspaper had failed to seek the
subject’s comments prior to publication (see paragraph 30
above). They also emphasised that the matter had recently been
examined in the context of an inquiry by the House of Commons
Culture, Media and Sport Committee (see paragraphs 51-54 above).
After hearing evidence, the Select Committee had decided against
recommending a legal requirement of pre-notification (see paragraph 54
above).
Finally, the Government considered that the fact that
pre-notification was carried out as a matter of good practice in most
cases did not mean that there were no insuperable difficulties in
imposing a legal requirement to do so. In their view, the
introduction of a pre-notification requirement would give rise to a
number of practical and principled objections. Difficulties arose
regarding the formulation of the scope of any obligation, including
the identification of the categories of press and media to which the
obligation would apply and the extent of the notification requirement
and the circumstances in which it would be engaged, as well as the
operation of any “public interest” exception. In this
regard, they disputed the applicant’s claim that the Ofcom Code
provided an example of the kind of pre-notification duty called for,
considering the obligation set out in Rule 7.9 of that code to be
significantly different. The question of sanctions for a failure to
comply with a pre-notification requirement was also problematic.
The Government considered it clear that the applicant
contemplated criminal sanctions and expressed concern about how to
define and enforce any criminal offence. They also warned that an
inadequately framed law could give rise to breaches of Article 10.
In
conclusion, the Government invited the Court to find that the
framework of legal regulation in place in the United Kingdom
concerning publications which might contravene the right to respect
for private life was sufficient to comply with any positive
obligations which arose.
c. Third party submissions
i. Guardian News & Media Ltd
The
Guardian News & Media Ltd (“the Guardian”) argued
that if the applicant’s complaint were to be upheld by the
Court, it would seriously and disproportionately fetter the right of
the press to publish, and the public to receive, information and
opinions in the public interest. A pre-notification requirement would
thus have a serious and unjustified chilling effect upon the
practical enjoyment of the right to freedom of expression. It would,
in their view, also be inconsistent with the concept of responsible
journalistic freedom which the Court had consistently emphasised.
The
Guardian stressed that while the applicant had formulated the
pre-notification duty by reference to the facts of his case, its
repercussions would be felt far more widely. First, they argued, an
alleged breach could involve not only the media but also public
authorities, non-governmental organisations or even private
individuals. Second, logic dictated that pre notification would
be required not only in privacy cases but in all cases requiring a
balancing exercise pursuant to Article 10 § 2.
Referring
to the wide margin of appreciation in this area, the Guardian
considered that the appropriate balance had been struck in the United
Kingdom. They highlighted the absence of any European consensus that
a pre-notification duty was required. Further, although some
countries required that consent be obtained before information
regarding private life was disseminated, at least where the public
interest was not implicated, a similar number of countries had no
such provision. The Guardian also referred to the Data Protection Act
1998 and its parent EC Directive, which did not provide for any
pre-notification requirement (see paragraphs 42-45 and 64 above).
They further referred to the recent inquiry by a House of Commons
Select Committee, which in its subsequent report rejected the
argument that there was a need for a pre-notification requirement in
the United Kingdom (see paragraphs 51-54 above).
Finally, the Guardian contended that any
pre-notification requirement would be unworkable in practice. They
considered that it would not always be obvious when the
pre-notification rule would be triggered, nor was it clear how the
need for a “public interest” exception could be catered
for.
ii. The Media Lawyers’ Association
The
Media Lawyers’ Association (“the MLA”) contended
that a pre-notification requirement was wrong in principle, would be
unworkable in practice and would constitute a breach of Article 10 of
the Convention.
The
MLA emphasised the wide margin of appreciation in deciding what
measures were required to satisfy any positive obligation in this
field. They referred to the lack of any European consensus on the
need for a pre-notification duty. They also pointed to the fact that
a House of Commons Select Committee had recently rejected the
suggestion that there should be a legal pre-notification requirement
(see paragraph 54 above). The question whether there was a need to
contact a subject prior to publication was, in their view, a matter
to be addressed in the context of the ethics of journalism and the
codes of practice governing the media. These codes had evolved over
time and demonstrated that the media were well aware of the duty to
respect each individual’s right to privacy. In particular, the
MLA noted that the Editors’ Code gave guidance as to what might
be covered by “public interest” (see paragraphs 34-35
above).
The MLA contended that the duty for which the
applicant argued was vague and uncertain in scope. They pointed out
that a pre-publication duty would have wide ramifications,
potentially applying not just to the media and journalists but to a
far broader group. A number of practical questions arose, for
example, as to who would have to be contacted by the media in respect
of any intended publication, whether the duty would arise in respect
of photographs taken in the street of unknown persons, whether it
would apply to images or text previously published and whether it
would extend to notification of close family members of the subject,
who might also be affected by the publication of the material. The
MLA further referred to the need for exceptions to any general duty,
for example, where there was a good reason not to contact the subject
or where there was a public interest in publication.
The
MLA emphasised the importance of Article 10 and in particular the
role of the press as “public watchdog”. They considered
that the availability and operation of interim injunctions continued
to be a matter of concern in this area and contended that prior
restraints on publication constituted a serious interference with the
right to freedom of expression. Accordingly, such restraints should
only be granted where strictly necessary, and any order granted
should be no wider than necessary. They emphasised that
injunction proceedings in themselves inevitably led to delay and
costs, even if no injunction was eventually granted, and any changes
which would encourage the seeking of injunctions would therefore not
be desirable. They argued that domestic law struck an appropriate
balance between competing rights and interests.
iii. The Media Legal Defence
Initiative, Index on Censorship, The Media International Lawyers’
Association, European Publishers’ Council, The Mass Media
Defence Centre, Romanian Helsinki Committee, The Bulgarian
Access to Information Programme (AIP) Foundation, Global Witness and
Media Law Resource Centre
In
their joint written submissions, the interveners referred to the
importance of the right to freedom of expression. There would, in
their view, be significant consequences were a pre-notification
requirement to be introduced. It would delay publication of important
news, which was itself a perishable commodity, in a wide range of
public interest situations wherever the public figure could claim
that his psychological integrity was at stake from publication of the
truth. The interveners disputed that any balance was required between
rights arising under Articles 8 and 10, arguing that there was a
presumption in favour of Article 10 and that reputation was a
subsidiary right which had to be narrowly interpreted.
The
interveners further argued that there was a wide margin of
appreciation in this area. They emphasised the tradition in common
law countries against prior restraints on publication, arguing that a
pre notification requirement would go against the long-standing
approach in this area. Further, they pointed out, there was no
Europe-wide consensus as to a need for a pre-notification rule. It
was also noteworthy that questions of privacy protection had been
regularly debated in the United Kingdom in recent years and had been
the subject of various reports, including the recent Select Committee
report (see paragraph 51-54 above). In that report, the applicant’s
case for a pre-notification requirement had been rejected.
The interveners also contended that privacy was
inadequately defined to support a pre-notification requirement.
However, they accepted that there might be an argument for a notice
requirement relating to medical records and photographs taken without
consent in private places, for example, but only if reputation were
no part of Article 8 and private information were properly defined.
In their view, as currently formulated, the requirement called for
was so vague as to be unworkable.
The interveners considered that any general duty
would have to be subject to exceptions, notably to an exception where
there was a “public interest” in publication. This being
the case, it was relevant that in the applicant’s case, the
editor of the News of the World would have published the story
without notification even if there had been a legally binding
pre notification requirement because he genuinely believed that
there was a Nazi element to the activities which would have justified
publication in the public interest (see paragraph 24 above).
The
interveners emphasised that even successfully defended injunction
proceedings could cost a newspaper GBP 10,000; an unsuccessful
newspaper could pay GBP 60,000. It was simply not viable for the
media to contest every case where compulsory notification would be
followed by a request for an injunction. This was the chilling effect
of a pre notification requirement.
2. The Court’s assessment
The Court recalls that Eady J in the High Court upheld the
applicant’s complaint against the News of the World (see
paragraph 25 above). He found that there was no Nazi element to the
applicant’s sexual activities. He further criticised the
journalist and the editor for the casual and cavalier manner in which
they had arrived at the conclusion that there was a Nazi theme. In
the absence of any Nazi connotations, there was no public interest or
justification in the publication of the articles or the images.
Reflecting the grave nature of the violation of the applicant’s
privacy in this case, Eady J awarded GBP 60,000 in damages. The
newspaper did not appeal the judgment. In light of these facts the
Court observes that the present case resulted in a flagrant and
unjustified invasion of the applicant’s private life.
The
Court further notes that as far as the balancing act in the
circumstances of the applicant’s particular case was concerned,
the domestic court firmly found in favour of his right to respect for
private life and ordered the payment to the applicant of substantial
monetary compensation. The assessment which the Court must undertake
in the present proceedings relates not to the specific facts of the
applicant’s case but to the general framework for balancing
rights of privacy and freedom of expression in the domestic legal
order. The Court must therefore have regard to the general principles
governing the application of Article 8 and Article 10, before
examining whether there has been a violation of Article 8 as a result
of the absence of a legally binding pre-notification requirement in
the United Kingdom.
a. General principles
i Article 8
It is clear that the words “the right to
respect for ... private ... life” which appear in Article 8
require not only that the State refrain from interfering with private
life but also entail certain positive obligations on the State to
ensure effective enjoyment of this right by those within its
jurisdiction (see Marckx v. Belgium, 13 June 1979, § 31,
Series A no. 31). Such an obligation may require the adoption of
positive measures designed to secure effective respect for private
life even in the sphere of the relations of individuals between
themselves (see Von Hannover v. Germany, no. 59320/00, §
57, ECHR 2004 VI, BAILII: [2005] ECHR 555 ; and Stubbings and Others v. the United
Kingdom, 22 October 1996, BAILII: [1996] ECHR 44, § 61-62, Reports of Judgments
and Decisions 1996 IV).
The
Court emphasises the importance of a prudent approach to the State’s
positive obligations to protect private life in general and of the
need to recognise the diversity of possible methods to secure its
respect (Karakó v. Hungary, no. 39311/05, §
19, 28 April 2009, BAILII: [2009] ECHR 712). The choice of measures designed to secure
compliance with that obligation in the sphere of the relations of
individuals between themselves in principle falls within the
Contracting States’ margin of appreciation (see, inter alia,
X and Y v. the Netherlands, 26 March 1985, BAILII: [1985] ECHR 4, § 24, Series
A no. 91; and Odièvre v. France [GC], no.
42326/98, § 46, ECHR 2003 III, BAILII: [2003] ECHR 86). However, this discretion
goes hand in hand with European supervision (see, mutatis
mutandis, Observer and Guardian v. the United Kingdom,
26 November 1991, BAILII: [1991] ECHR 49, § 59(c), Series A no. 216; and Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and
36448/02, § 45, ECHR 2007 XI, BAILII: [2007] ECHR 836).
The Court recalls that a number of factors must be
taken into account when determining the breadth of the margin of
appreciation to be accorded to the State in a case in which Article 8
of the Convention is engaged. First, the Court reiterates that the
notion of “respect” in Article 8 is not clear-cut,
especially as far as the positive obligations inherent in that
concept are concerned: bearing in mind the diversity of the practices
followed and the situations obtaining in the Contracting States, the
notion’s requirements will vary considerably from case to case
(see Sheffield and Horsham v. the United Kingdom, 30 July
1998, BAILII: [1998] ECHR 69, § 52, Reports 1998 V). Thus Contracting
Parties enjoy a wide margin of appreciation in determining the steps
to be taken to ensure compliance with the Convention (see Handyside
v. the United Kingdom, judgment of 7 December 1976, BAILII: [1976] ECHR 5, Series A no.
24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the
United Kingdom, 28 May 1985, BAILII: [1985] EHRR 471, § 67, Series A no. 94; Hatton
and Others v. the United Kingdom [GC], no. 36022/97,
§ 97, ECHR 2003 VIII, BAILII: [2003] ECHR 338; and Armonienė, cited
above, § 38). In this regard, the Court recalls that by reason
of their direct and continuous contact with the vital forces of their
countries, the State authorities are, in principle, in a better
position than the international judge to give an opinion on how best
to secure the right to respect for private life within the domestic
legal order (see, mutatis mutandis, Handyside, cited
above, § 48; A, B and C v. Ireland [GC],
no. 25579/05, § 232, 16 December 2010, BAILII: [2010] ECHR 2032; and MGN Limited
v. the United Kingdom, no. 39401/04, § 142, 18 January
2011, BAILII: [2011] ECHR 66).
Second, the nature of the activities involved affects
the scope of the margin of appreciation. The Court has previously
noted that a serious interference with private life can arise where
the state of domestic law conflicts with an important aspect of
personal identity (see Christine Goodwin v. the United Kingdom
[GC], no. 28957/95, § 77, ECHR 2002 VI, BAILII: [2002] ECHR 588). Thus, in
cases concerning Article 8, where a particularly important facet of
an individual’s existence or identity is at stake, the margin
allowed to the State is correspondingly narrowed (see Evans v. the
United Kingdom [GC], no. 6339/05, BAILII: [2007] ECHR 264, § 77, ECHR 2007 IV;
and A, B and C v. Ireland [GC], cited above, § 232). The
same is true where the activities at stake involve a most intimate
aspect of private life (see, mutatis mutandis, Dudgeon v.
the United Kingdom, 22 October 1981, BAILII: [1981] ECHR 5, § 52, Series A no. 45;
and A.D.T. v. the United Kingdom, no. 35765/97, BAILII: [2000] ECHR 402 , §
37, ECHR 2000-IX).
Third, the existence or absence of a consensus across
the Member States of the Council of Europe, either as to the relative
importance of the interest at stake or as to the best means of
protecting it, is also relevant to the extent of the margin of
appreciation: where no consensus exists, the margin of appreciation
afforded to States is generally a wide one (see Evans,
cited above, § 77; X, Y and Z v. the United
Kingdom, 22 April 1997, BAILII: [1997] ECHR 20, § 44, Reports 1997 II;
and Dickson v. the United Kingdom [GC], no. 44362/04, BAILII: [2007] ECHR 1050 , §
78, ECHR 2007 XIII). Similarly, any standards set out in
applicable international instruments and reports are relevant to the
interpretation of the guarantees of the Convention and in particular
to the identification of any common European standard in the field
(see Tănase v. Moldova [GC], no. 7/08, § 176,
ECHR 2010 ...).
Finally,
in cases where measures which an applicant claims are required
pursuant to positive obligations under Article 8 would have an impact
on freedom of expression, regard must be had to the fair balance that
has to be struck between the competing rights and interests arising
under Article 8 and Article 10 (see MGN Limited, cited above,
§ 142), rights which merit, in principle, equal respect
(Hachette Filipacchi Associés (ICI PARIS)
v. France, no. 12268/03, § 41, 23 July 2009, BAILII: [2009] ECHR 1425; compare and
contrast Sunday Times v. the United Kingdom (no. 1), 26 April
1979, BAILII: [1979] ECHR 1, § 65, Series A no. 30).
ii. Article 10
The Court emphasises the pre-eminent role of the
press in informing the public and imparting information and ideas on
matters of public interest in a State governed by the rule of law
(see Financial Times Ltd and Others v. the United Kingdom, no.
821/03, § 59, 15 December 2009, BAILII: [2009] ECHR 2065; MGN Limited, cited above,
§ 141; and De Haes and Gijsels v. Belgium, 24
February 1997, BAILII: [1997] ECHR 7, § 37, Reports 1997-I). Not only does the
press have the task of imparting such information and ideas but the
public also has a right to receive them. Were it otherwise, the press
would be unable to play its vital role of “public watchdog”
(Observer and Guardian, cited above, § 59; Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, BAILII: [1999] ECHR 29, § 62, ECHR
1999-III; Gutiérrez Suárez v. Spain,
no. 16023/07, § 25, 1 June 2010, BAILII: [2010] ECHR 2225; and MGN Limited,
cited above, § 141).
It
is to be recalled that methods of objective and balanced reporting
may vary considerably and that it is therefore not for this Court to
substitute its own views for those of the press as to what technique
of reporting should be adopted (see Jersild v. Denmark, 23
September 1994, BAILII: [1994] ECHR 33, § 31, Series A no. 298). However, editorial
discretion is not unbounded. The press must not overstep the bounds
set for, among other things, “the protection of ... the rights
of others”, including the requirements of acting in good faith
and on an accurate factual basis and of providing “reliable and
precise” information in accordance with the ethics of
journalism (see Pedersen and Baadsgaard v. Denmark [GC], no.
49017/99, BAILII: [2004] ECHR 693, § 78, ECHR 2004-X; Times Newspapers Ltd v. United
Kingdom (nos. 1 and 2),
no. 3002/03 and 23676/03, BAILII: [2009] ECHR 451, § 42, ECHR 2009 ...;
and MGN Limited, cited above, § 141).
The Court also reiterates that there is a distinction
to be drawn between reporting facts – even if controversial –
capable of contributing to a debate of general public interest in a
democratic society, and making tawdry allegations about an
individual’s private life (see Armonienė, cited
above, § 39). In respect of the former, the pre-eminent
role of the press in a democracy and its duty to act as a “public
watchdog” are important considerations in favour of a narrow
construction of any limitations on freedom of expression. However,
different considerations apply to press reports concentrating on
sensational and, at times, lurid news, intended to titillate and
entertain, which are aimed at satisfying the curiosity of a
particular readership regarding aspects of a person’s strictly
private life (Von Hannover, cited above, § 65; Hachette
Filipacchi Associés (ICI PARIS), cited above,
§ 40; and MGN Limited, cited above, § 143).
Such reporting does not attract the robust protection of Article 10
afforded to the press. As a consequence, in such cases, freedom of
expression requires a more narrow interpretation (see Société
Prisma Presse v. France (dec.), nos. 66910/01 and
71612/01, 1 July 2003, BAILII: [2003] ECHR 715; Von Hannover, cited above, § 66;
Leempoel & S.A. ED. Ciné Revue v. Belgium, no.
64772/01, § 77, 9 November 2006, BAILII: [2006] ECHR 2002; Hachette Filipacchi
Associés (ICI PARIS), cited above, 40; and
MGN Limited, cited above, § 143). While confirming the
Article 10 right of members of the public to have access to a wide
range of publications covering a variety of fields, the Court
stresses that in assessing in the context of a particular publication
whether there is a public interest which justifies an interference
with the right to respect for private life, the focus must be on
whether the publication is in the interest of the public and not
whether the public might be interested in reading it.
It is commonly acknowledged that the audiovisual
media have often a much more immediate and powerful effect than the
print media (see Jersild, cited above, § 31; and
Peck v. the United Kingdom, no. 44647/98, BAILII: [2003] ECHR 44, § 62,
ECHR 2003 I). Accordingly, although freedom of expression
also extends to the publication of photographs, the Court recalls
that this is an area in which the protection of the rights of others
takes on particular importance, especially where the images contain
very personal and intimate “information” about an
individual or where they are taken on private premises and
clandestinely through the use of secret recording devices (see Von
Hannover, cited above, § 59; Hachette Filipacchi
Associés (ICI PARIS), cited above, § 47; and
MGN Limited, cited above, § 143). Factors relevant to the
assessment of where the balance between the competing interests lies
include the additional contribution made by the publication of the
photos to a debate of general interest as well as the content of the
photographs (see Krone Verlag GmbH & Co. KG v. Austria,
no. 34315/96, § 37, 26 February 2002, BAILII: [2002] ECHR 159).
The Court recalls that the nature and severity of any
sanction imposed on the press in respect of a publication are
relevant to any assessment of the proportionality of an interference
with the right to freedom of expression (see, for example, Ceylan
v. Turkey [GC], no. 23556/94, BAILII: [1999] ECHR 44, § 37, ECHR 1999-IV;
Lešník v. Slovakia, no. 35640/97, BAILII: [2003] ECHR 124, § 63,
ECHR 2003-IVl and Karsai v. Hungary, no. 5380/07, BAILII: [2009] ECHR 1974, § 36, 1
December 2009). Thus the Court must exercise the utmost caution where
measures taken or sanctions imposed by the national authorities are
such as to dissuade the press from taking part in the discussion of
matters of legitimate public concern (see Jersild, cited
above, § 35; and Cumpǎnǎ and Mazǎre v. Romania
[GC], no. 33348/96, BAILII: [2004] ECHR 692, § 111, ECHR 2004 XI).
Finally, the Court has emphasised that while Article
10 does not prohibit the imposition of prior restraints on
publication, the dangers inherent in prior restraints are such that
they call for the most careful scrutiny on the part of the Court.
This is especially so as far as the press is concerned, for news is a
perishable commodity and to delay its publication, even for a short
period, may well deprive it of all its value and interest
(see Observer and Guardian, cited above, § 60). The
Court would, however, observe that prior restraints may be more
readily justified in cases which demonstrate no pressing need for
immediate publication and in which there is no obvious contribution
to a debate of general public interest.
b. Application of the general principles
to the facts of the case
As
noted above (see paragraph 106), it is clear that a positive
obligation arises under Article 8 in order to ensure the effective
protection of the right to respect for private life. The question for
consideration in the present case is whether the specific measure
called for by the applicant, namely a legally binding
pre-notification rule, is required in order to discharge that
obligation.
The Court observes at the outset that this is not a
case where there are no measures in place to ensure protection of
Article 8 rights. A system of self-regulation of the press has been
established in the United Kingdom, with guidance provided in the
Editors’ Code and Codebook and oversight of journalists’
and editors’ conduct by the PCC (see paragraphs 29-38 above).
This system reflects the 1970 declaration, the 1998 resolution and
the 2008 resolution of the Parliamentary Assembly of the Council of
Europe (see paragraphs 55 and 58-59 above). While the PCC itself has
no power to award damages, an individual may commence civil
proceedings in respect of any alleged violation of the right to
respect for private life which, if successful, can lead to a damages
award in his favour. In the applicant’s case, for example, the
newspaper was required to pay GBP 60,000 damages, approximately GBP
420,000 in respect of the applicant’s costs and an unspecified
sum in respect of its own legal costs in defending the claim.
The Court is of the view that such awards can reasonably be
expected to have a salutary effect on journalistic practices.
Further, if an individual is aware of a pending publication relating
to his private life, he is entitled to seek an interim injunction
preventing publication of the material. Again, the Court notes that
the availability of civil proceedings and interim injunctions is
fully in line with the provisions of the Parliamentary Assembly’s
1998 resolution (see paragraph 58 above). Further protection for
individuals is provided by the Data Protection Act 1998, which sets
out the right to have unlawfully collected or inaccurate data
destroyed or rectified (see paragraphs 42-45 above).
The
Court further observes that, in its examination to date of the
measures in place at domestic level to protect Article 8 rights in
the context of freedom of expression, it has implicitly accepted that
ex post facto damages provide an adequate remedy for
violations of Article 8 rights arising from the publication by a
newspaper of private information. Thus in Von Hannover, cited
above, the Court’s analysis focused on whether the judgment of
the domestic courts in civil proceedings brought following
publication of private material struck a fair balance between the
competing interests. In Armonienė, cited above, a
complaint about the disclosure of the applicant’s husband’s
HIV-positive status focused on the “derisory sum” of
damages available in the subsequent civil proceedings for the serious
violation of privacy. While the Court has on occasion required more
than civil law damages in order to satisfy the positive obligation
arising under Article 8, the nature of the Article 8 violation in the
case was of particular importance. Thus in X and Y v. the
Netherlands, 26 March 1985, BAILII: [1985] ECHR 4, § 27, Series A no. 91, the
Court insisted on the need for criminal law provisions to achieve
deterrence in a case which involved forced sexual intercourse with a
sixteen year old mentally handicapped girl. In K.U. v. Finland,
no. 2872/02, BAILII: [2008] ECHR 1563, §§ 46-47, 2 December 2008, the availability of
civil law damages from an Internet service provider was inadequate
where there was no possibility of identifying the person who had
posted an advert in the name of the applicant, at the time only
twelve years old, on a dating website, thus putting him at risk of
sexual abuse.
In the present case the Court must consider whether,
notwithstanding its past approach in cases concerning violations of
the right to respect for private life by the press, Article 8
requires a pre-notification rule in order to ensure effective
protection of the right to respect for private life. In doing so, the
Court will have regard, first, to the margin of appreciation
available to the respondent State in this field (see paragraphs 108-110
above) and, second, to the clarity and potential effectiveness of the
rule called for by the applicant. While the specific facts of the
applicant’s case provide a backdrop to the Court’s
consideration of this question, the implications of any
pre-notification requirement are necessarily far wider. However
meritorious the applicant’s own case may be, the Court must
bear in mind the general nature of the duty called for. In
particular, its implications for freedom of expression are not
limited to the sensationalist reporting at issue in this case but
extend to political reporting and serious investigative journalism.
The Court recalls that the introduction of restrictions on the latter
type of journalism requires careful scrutiny.
i. The margin of appreciation
The
Court recalls, first, that the applicant’s claim relates to the
positive obligation under Article 8 and that the State in principle
enjoys a wide margin of appreciation (see paragraph 108 above). It is
therefore relevant that the respondent State has chosen to put in
place a system for balancing the competing rights and interests which
excludes a pre notification requirement. It is also relevant
that a parliamentary committee recently held an inquiry on privacy
issues during which written and oral evidence was taken from a number
of stakeholders, including the applicant and newspaper editors. In
its subsequent report, the Select Committee rejected the argument
that a pre-notification requirement was necessary in order to ensure
effective protection of respect for private life (see paragraph 54
above).
Second,
the Court notes that the applicant’s case concerned the
publication of intimate details of his sexual activities, which would
normally result in a narrowing of the margin of appreciation (see
paragraph 109 above). However, the highly personal nature of the
information disclosed in the applicant’s case can have no
significant bearing on the margin of appreciation afforded to the
State in this area given that, as noted above (see paragraph 121
above), any pre-notification requirement would have an impact beyond
the circumstances of the applicant’s own case.
Third,
the Court highlights the diversity of practice among member States as
to how to balance the competing interests of respect for private life
and freedom of expression (see paragraphs 62-63 above). Indeed the
applicant has not cited a single jurisdiction in which a
pre-notification requirement as such is imposed. In so far as any
common consensus can be identified, it therefore appears that such
consensus is against a pre-notification requirement rather than in
favour of it. The Court recognises that a number of member States
require the consent of the subject before private material is
disclosed. However, it is not persuaded that the need for consent in
some States can be taken to constitute evidence of a European
consensus as far as a pre-notification requirement is concerned. Nor
has the applicant pointed to any international instruments which
require States to put in place a pre-notification requirement.
Indeed, as the Court has noted above (see paragraph 119), the current
system in the United Kingdom fully reflects the resolutions of the
Parliamentary Assembly of the Council of Europe (see paragraphs 56-59
above). The Court therefore concludes that the respondent State’s
margin of appreciation in the present case is a wide one.
ii. The clarity and effectiveness of a
pre-notification requirement
The
applicant considered that the duty should be triggered where any
aspect of private life was engaged. It would therefore not be limited
to the intended disclosure of intimate or sexual details of private
life. As such, the duty would be a relatively broad one.
Notwithstanding the concerns expressed by the Government and the
interveners (see paragraphs 89, 94, 97 and 101 above) the Court
considers that the concept of “private life” is
sufficiently well understood for newspapers and reporters to be able
to identify when a publication could infringe the right to respect
for private life. Specific considerations would arise, for example in
the context of photographs of crowds, but suitable provisions could
be included in any law. The Court is further of the view that a
satisfactory definition of those who would be subject to the
requirement could be found. It would appear possible, for example, to
provide for a duty which would apply to those within the purview of
the Editors’ Code.
However,
the Court is persuaded that concerns regarding the effectiveness of a
pre-notification duty in practice are not unjustified.
Two considerations arise. First, it is generally accepted that
any pre notification obligation would require some form of
“public interest” exception (see paragraphs 83, 89, 94, 97
and 102 above). Thus a newspaper could opt not to notify a subject if
it believed that it could subsequently defend its decision on the
basis of the public interest. The Court considers that in order to
prevent a serious chilling effect on freedom of expression, a
reasonable belief that there was a “public interest” at
stake would have to be sufficient to justify non-notification, even
if it were subsequently held that no such “public interest”
arose. The parties’ submissions appeared to differ on whether
“public interest” should be limited to a specific public
interest in not notifying (for example, where there was a risk of
destruction of evidence) or extend to a more general public interest
in publication of the material. The Court would observe that a
narrowly defined public interest exception would increase the
chilling effect of any pre-notification duty.
In
the present case, the defendant newspaper relied on the belief of the
reporter and the editor that the sexual activities in which the
applicant participated had Nazi overtones. They accordingly argued
that publication was justified in the public interest. Although Eady
J criticised the casual and cavalier manner in which the News of
the World had arrived at the conclusion that there was a Nazi
element, he noted that there was significant scope for differing
views on the assessment of the “public interest” and
concluded that he was not in a position to accept that the journalist
and editor concerned must have known at the time that no public
interest defence could succeed (see paragraphs 23-24 above). Thus, in
the applicant’s own case, it is not unlikely that even had a
legally binding pre-notification requirement been in place at the
relevant time, the News of the World would have chosen not to
notify in any event, relying at that time on a public interest
exception to justify publication.
Second,
and more importantly, any pre-notification requirement would only be
as strong as the sanctions imposed for failing to observe it.
A regulatory or civil fine, unless set at a punitively high
level, would be unlikely to deter newspapers from publishing private
material without pre-notification. In the applicant’s case,
there is no doubt that one of the main reasons, if not the only
reason, for failing to seek his comments was to avoid the possibility
of an injunction being sought and granted (see paragraphs 21 and
52 above). Thus the News of the World chose to run the risk
that the applicant would commence civil proceedings after publication
and that it might, as a result of those proceedings, be required to
pay damages. In any future case to which a pre-notification
requirement applied, the newspaper in question could choose to run
the same risk and decline to notify, preferring instead to incur an
ex post facto fine.
Although
punitive fines or criminal sanctions could be effective in
encouraging compliance with any pre-notification requirement, the
Court considers that these would run the risk of being incompatible
with the requirements of Article 10 of the Convention. It reiterates
in this regard the need to take particular care when examining
restraints which might operate as a form of censorship prior to
publication. It is satisfied that the threat of criminal sanctions or
punitive fines would create a chilling effect which would be felt in
the spheres of political reporting and investigative journalism, both
of which attract a high level of protection under the Convention.
iii. Conclusion
As
noted above, the conduct of the newspaper in the applicant’s
case is open to severe criticism. Aside from publication of the
articles detailing the applicant’s sexual activities, the News
of the World published photographs and video footage, obtained
through clandestine recording, which undoubtedly had a far greater
impact than the articles themselves. Despite the applicant’s
efforts in a number of jurisdictions, these images are still
available on the Internet. The Court can see no possible additional
contribution made by the audiovisual material (see paragraph 115
above), which appears to have been included in the News of the
World’s coverage merely to titillate the public and
increase the embarrassment of the applicant.
The
Court, like the Parliamentary Assembly, recognises that the private
lives of those in the public eye have become a highly lucrative
commodity for certain sectors of the media (see paragraph 57 above).
The publication of news about such persons contributes to the
variety of information available to the public and, although
generally for the purposes of entertainment rather than education,
undoubtedly benefits from the protection of Article 10. However, as
noted above, such protection may cede to the requirements of Article
8 where the information at stake is of a private and intimate nature
and there is no public interest in its dissemination. In this regard
the Court takes note of the recommendation of the Select Committee
that the Editors’ Code be amended to include a requirement that
journalists should normally notify the subject of their articles
prior to publication, subject to a “public interest”
exception (see paragraph 53 above).
However,
the Court has consistently emphasised the need to look beyond the
facts of the present case and to consider the broader impact of a
pre-notification requirement. The limited scope under Article 10 for
restrictions on the freedom of the press to publish material which
contributes to debate on matters of general public interest must be
borne in mind. Thus, having regard to the chilling effect to which a
pre-notification requirement risks giving rise, to the significant
doubts as to the effectiveness of any pre-notification requirement
and to the wide margin of appreciation in this area, the Court is of
the view that Article 8 does not require a legally binding
pre-notification requirement. Accordingly, the Court concludes that
there has been no violation of Article 8 of the Convention by the
absence of such a requirement in domestic law.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki Registrar President
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URL: http://www.bailii.org/eu/cases/ECHR/2011/774.html