“THE MOSLEY CASE”

 

 

 

A comment by Phillip Taylor MBE LL.B (Hons) PGCE Barrister-at-Law, Barrister Desk Editor

 

 

The debate continues to rage in England and Wales over privacy v expression as highlighted earlier this year by Barrister Desk with the ‘JK Rowling’ case. The latest outing for the debate was last week, in the High Court, in the case of Max Mosley and a newspaper called ‘The News of World’, the largest selling Sunday newspaper in Britain, cited as Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB) (24 July 2008).

 

The judgment by Mr Justice Eady covers EU Law, Human Rights Law and Tort (privacy/breach of confidence). The matter before the courts involved a breach of confidence when a prostitute, Miss E, filmed a sado-masochistic ‘party’ held by Mosley in his basement flat, unbeknown to Mr Mosley. 

 

The News of the World subsequently published accounts of the ‘party’ and Mosley sued for breach of confidence as Britain has no privacy law as such except for common law privacy rights established in the Rowling case in 2007 and the two articles under the Convention of Human Rights now enshrined in the Human Rights Act 1998.

 

Eady J awarded Mosley £60,000 and costs for breach of confidence and has now opened the way for defamation proceedings by Mosley against the News of the World to be started shortly here and internationally. The full report can be viewed at: http://www.bailii.org/ew/cases/EWHC/QB/2008/1777.html.

 

Conclusion

 

Clearly the judgment by Eady J is disturbing for journalists as it appears to create a common law right of privacy hitherto not recognised in such a firm way by a court of first instance (the QBD). The issue which learners will need to identify in examinations is whether privacy (art 8) overrides expression (art 10) under the Human Rights Act 1988. 

 

It would appear that ‘privacy’ has it at the moment.  Think about the jurisprudential issue here- should private matters, like S & M sessions in private by a man holding a public position in motor racing, be protected legally, or should journalists have the right to express an opinion and print an article about it in the newspapers or on the internet? 

 

The answer currently is ‘no’ which means that unscrupulous people may try to hide behind a “privacy right” when an “expression right” should expose their activities but cannot.  Such activities may include matters such as “Watergate”, or any matters where politicians fear exposure when they want their activities covered up. 

 

Much has been written, including the “apology” which is no apology today in ‘The News of the World” (see: http://www.newsoftheworld.co.uk/2707_mosley_01.php).  Anyone viewing ‘The News of the World’ website will now see their notice removing the offending video clip, and be aware of the sort of material they publish each week which is bought by 15 million ‘readers’ of the ‘newspaper’ in this country. The newspaper was clearly unrepentant on the steps of the High Court, and in practice the money is chicken-feed to the newspaper- however, the principle is not. 

 

I leave it to you to decide what direction the law should take in future as part of the blame for this decision is laid at the door of the European Union for its “laws” forced on the UK, and I leave you with this suggestion that the only way around the issue of privacy v expression is possibly to create a ‘Freedom of Expression Act’ to overturn Eady J’s judgment and destroy the right to a privacy law except where it should apply to children as in the case of J K Rowling:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2008/446.html.

 

 

July 2008