Here are my excerpts from David Eady’s judgment in Mosley vs News Group Newspapers Ltd:
The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence. That is because the law is concerned to prevent the violation of a citizen’s autonomy, dignity and self-esteem. It is not simply a matter of “unaccountable” judges running amok. Parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts…
It was expressly recognised that no one Convention right takes automatic precedence over another. In the present context, for example, it has to be accepted that any rights of free expression, as protected by Article 10, whether on the part of Woman E or the journalists working for the News of the World, must no longer be regarded as simply “trumping” any privacy rights that may be established on the part of the Claimant. Language of that kind is no longer used. Nor can it be said, without qualification, that there is a “public interest that the truth should out”: cf. Fraser v Evans [1969] 1 QB 349, 360F-G, per Lord Denning MR…
[P]eople’s sex lives are to be regarded as essentially their own business – provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable…
It would hardly be appropriate to clutter up the courts with cases of spanking between consenting adults taking place in private property and without disturbing the neighbours. That would plainly not be in the public interest. It would not be logical, therefore, to pray in aid the public interest when seeking to justify hidden cameras and worldwide coverage…
[S]ince I have concluded that there was no such mocking behaviour and not even, on the material I have viewed, any evidence of imitating, adopting or approving Nazi behaviour, I am unable to identify any legitimate public interest to justify either the intrusion of secret filming or the subsequent publication.
It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they are entitled to hound those who practise them or to detract from their right to live life as they choose…
It is important, in this new rights-based jurisprudence, to ensure that where breaches occur remedies are not refused because an individual journalist or judge finds the conduct distasteful or contrary to moral or religious teaching. Where the law is not breached … the private conduct of adults is essentially no-one else’s business. The fact that a particular relationship happens to be adulterous, or that someone’s tastes are unconventional or “perverted”, does not give the media carte blanche…
[T]itillation for its own sake could never be justified. Yet it is reasonable to suppose that it was this which led so many thousands of people to accept the News of the World’s invitation on 30 March to “See the shocking video at notw.co.uk”. It would be quite unrealistic to think that these visits were prompted by a desire to participate in a “debate of general interest”…
[I]t would seem that there may yet be scope for paying regard to the concept of “responsible journalism”, which has been referred to over recent years in the context of public interest privilege in libel. There is an obvious analogy. This rather vague term has been illuminated and defined in such a way that it could now be regarded as approaching a legal term of art. It has to be assessed in the round, but there are certain guidelines which have been listed to assist in making a judgment: see e.g. Lord Nicholls’ 10 non-exhaustive “factors” in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 205…
I am not in a position to accept the 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). As Mr Myler commented in the witness box, “That is what we are here to find out”. Nor can I conclude that one or other of them was genuinely indifferent to whether there was a public interest defence (a state of mind that could be equated to recklessness)…
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…Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong…
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 … that the news agenda will move on.
It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.
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