Privacy and The Press; The Case of Mosley v News Group Newspapers

Introduction

The recent increase in intrusion of individuals in the public eye private life by the media has given very much attention about the law on privacy. The media have been relying on their right of freedom of expression to invade individuals in the public eyes or celebrities to expose their private life in the public. The celebrities on the other hand have challenged the publication of their private life as a breach of their private right.

In this article, I will be examining the case of Mosley v News Group Newspapers Ltd (News Group) [1] and the decision of the court to uphold the Max Mosley right of privacy over News Group Newspaper freedom of expression.

What do we mean when we take about privacy or right to private life? It is very difficult to define privacy in relation to is scope and the specific areas privacy covers. In one sense, it can be define as “the general right to be left alone, a desire to be left to enjoy a particular place, either alone or with others, which the state or others should not be allowed to penetrate" [2] . The right to privacy entails right to keep your personal information to your self or your private information shared with people be kept private among themselves. This right is very vital because it helps individuals to make their personal choices without undue interference. [3] 

Even with the significance attached to the right to enjoy private life without interference; there is now domestic law on privacy [4] . The fact that there is no clear law of privacy does not mean that peoples privacy right cannot be protected when their privacy is been breached. An individual whose privacy has been interfered can rely on common law, law of confidentiality [5] and Article 8 [6] .

In the case of Mosley v News Group Newspapers Ltd (NGN) [7] , Mosley brought a claim against NGN for breach of confidentiality and Article 8 [8] . In this case, NGN a story about Mosley, who was the President of the FIA, concerning sexual event attended by Mosley and five women involving in sado-masochistic and some sexual activities and role play. The information was also published on NGN website, which contains the pictures and video of the event. The articles alleged that the sessions had a Nazi theme and mocked the way that Holocaust victims had been treated in concentration camps. The footage of the event was taken covertly by one the women who took part of the event, by a hidden camera supplied by News Group.

Mosley contended that the event was inherently private in nature and there was pre-existing confidential relationship as they knew each other for sometime and that the event will be kept private among them. News Group also contends that Mosley has no reasonable expectation of privacy in relation to the information concerning the event or alternatively, the public interest in publishing the information outweigh Mosley Right to Privacy [9] and therefore the right to freedom of expression [10] should prevail. News Group alleged that because Mosley is the President of FIA, the public is interested in the kind of sexual activities he indulged in.

Recent cases including Campbell v MGN [11] and Mckennit v Ash [12] , attest to the fact the law of confidentiality has been developed to protect privacy. In the case of Campbell v MGN [13] the court established that in deciding whether an individuals privacy has been interfered, it must established that; 1. Does Mosley have reasonable expectation of privacy in relation to the even?; 2. If he does the court have to undertake a balancing exercise between right to private life/ confidentiality and freedom of expression [14] .

Reasonable expectation of Privacy

More often than not, Celebrities are seen as role models and that the public has a genuine interest in the majority of their activities. There is an assumption that Public figures should have a low right to privacy because of the role they play in the society. However, Public figures have a reasonable expectation of privacy despite their statues, one which cannot be overridden simply because the public are interested to know details of their private affairs [15] . In the case of Mosley v News Corporation, it was held that Mosley has a reasonable expectation of Privacy even though there was no pre-existing relation which gave rise to enforceable duty of confidence. Duty of confidence can arise even if there is no pre-existing enforceable duty of confidence. [16] The court did not have many difficulties in concluding that Mosley has reasonable right to privacy. The event happened in a private place and it was between consenting adult who have right to chose any sexual activities they were interested. “[A]nyone indulging in sexual activity is entitled to a degree of privacy, especially if it is on private property and between consenting adults (paid or unpaid)" [17] . Eady J. also highlighted another line of authority that addresses the issue of surveillance and clandestine recording [18] . In light of these two strands of authority, Eady J. held that it is, “fairly obvious that the clandestine recording of sexual activity on private property must be taken to engage Article 8" [19] 

Balancing Competing interest between right to Privacy Freedom of expression

Right to private life [20] and Freedom of expression [21] are equally vital rights the court, as a public body, have to protect. Both rights are qualified rights and are subject to restrictions. When these two rights engaged the court will not give automatic trump status on one right over the other. [22] 

Therefore the court has a difficult task of balancing the interest of Mosley to protect his private life on one hand and the interest of New Group right of Freedom of expression. When these too rights engaged, the court will allow disclosure to prevail if there is genuine public interest to know about the story. In this case, News Corporation alleged that, Mosley was performing sexual act which was similar to Nazi behaviour. It further alleged that Mosley have denied in public that he does not support his fathers behaviour of supporting Nazi, so they have wanted to set the record straight.

The court did not find any evidence of the event which mock victims of holocaust therefore there was no genuine interest of the public. The court was right to conclude that there was no public interest to publish the video and pictures on the website, they could have write the story without necessary publishing the video or pictures, in this sense the court could would have allow freedom of expression to prevail [23] .

Recently the court is willing to uphold individuals’ privacy when there is excessive intrusion by the media. In the case of Von Hannover v Germany [24] , the court protected the privacy of Princess Caroline and family when they were taken pictures by the media in the public. The idea behind it is that any person has a right to private life so they should go around with their activities without unnecessary intrusion by the media.

This judgement attracted a lot of criticism from the media. The media accused the court of “inexorably and insidiously" bringing in a new privacy law by the back door, which is leading to greater restrictions on the freedom of the press to publish stories about the rich and powerful [25] . It is undisputable fact that for the past five and six years the court has been applying the law in such a way it protects individual rights. English judges have simply been developing English privacy law in step with the Strasbourg court, as, of course, they are bound to do under the HRA. [26] 

Conclusion

This case clearly confirms that the courts are willing to protect individual’s right to private life when there is intrusion by the media which is not justifiable. The assumption that Public figures should not be accorded any privacy has been dismissed by this case and recent judgement of the court both domestic and the European Human Right Court.