Intellectual Property Law

Free speech trumps privacy, but only just, in Mosley case

By Ilanah

The IPKat has come across a privacy case in which Max Mosley attempted to enjoin the News of the World from showing video footage of his allegedly Nazi-themed orgy with five prostitutes. The footage was posted on the News of the World?s website at the end of March. It was then voluntarily taken down on 31 March, by which time other websites had copied and posted the footage. On 3 April the News of the World gave notice that it intended to repost the footage. Mosley applied to the court for an injunction to stop this.

According to Eady J, Mosley?s Art.8 right to privacy was in conflict with the News of the World?s Art.10 right to freedom of expression. In balancing the two, the court has to take the following into account:

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

The information disclosed intrustive and demeaning to Mosley. However, the court had to consider two factors which could limit his right to privacy:

1. There was no public interest justification for revealing the edited video footage. The public was already aware of Mr Mosley?s proclivities, and the pictures embodied in the video footage were only of interest because they were ?mildly salacious and provide an opportunity to have a snigger at the expense of the participants?.

Although there was a public interest in protecting the public from being misled by statements made by a claimant (in this case, the possibility that Mr Mosley was not telling the truth in denying that the S&M session has a Nazi theme), the News of the World could put the record straight without recourse to the video footage. In particular, the footage in question did not convincingly show that Mosley was lying.

2. However, there was no point in barring the News of the World from showing the material since the material was now widely available on the internet and anyone who wished to view the footage could easily do so. Either Mosley had lost his reasonable expectation of privacy because the information was so widely available, or the information has entered the public domain. In either case, the court had to avoid adopting the role of King Canute and making ?vain gestures?.

The judge summarised:

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 IPKat is a tad puzzled by Eady J?s approach. Although he states that no convention right takes precedence over another, he seems to proceed on the assumption that Mosley has a prima facie right to privacy which would need to be rebutted by free speech concerns. In other words, free speech seems to be being treated almost as a defence, rather than as a right of equal importance to privacy.

Full post as published by IPKat on April 30, 2008 (boomark / email).