Privacy After Max Mosley

Robert Deacon

Max Mosley had been President of the FIA and trustee of its charitable arm. He was the subject of a news story in the News of the World in which it was said that he had been involved in a sick Nazi orgy with five hookers. Images accompanied the article and the same information appeared on the Newspaper's website. The follow up article consisted of a purported interview with one of the "hookers" who had filmed what had taken place clandestinely with a camera concealed in her clothing. Max Mosley brought a claim against the Newspaper for breach of confidence and / or the unauthorised disclosure of personal information infringing his rights to privacy protected by Art 8 of the ECHR. He won his case on the basis that the court held that he had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on by consenting adults in private and there was no public interest or other justification for the clandestine recording or publication of the resulting information. It was held that the fact that such behaviour is viewed with distaste and moral disapproval, does not provide any justification in the light of the modern rights-based jurisprudence.

It needed the somewhat unusual and extreme facts of Max Mosley's case and a determined and resourceful Claimant for the courts to have to confront head on the issue over how far private conduct is protected from unauthorised media exposure where the conduct might be thought distasteful or even morally reprehensible. The answer is that by and large what individuals choose to do in private is their own business so long as it is not criminal. It is not for judges to make moral judgements about what is and what is not deserving of protection under the new privacy law. Privacy law is beginning to settle down and take shape.

English law has not been against protecting privacy as such but has been careful to ensure the law is not used to suppress the truth. Privacy has had to take a back seat to free debate and a free press which are considered central to democratic society. Although privacy was protected somewhat diffidently, it is now recognised to be an important right in itself and, crucially, one equally important as freedom of expression.

This necessitated a rethink over how privacy is protected because it is not easy to accommodate two equally important competing rights (privacy and freedom of expression) when they are in direct conflict. For example, if a right to privacy is established why should it be abrogated because a paper wants to print salacious celebrity gossip of no public interest value? The Mosley case brought into focus the fact that reality differs sharply from theory when privacy principles are applied. Public debate on matters of public interest in a democratic society is not really the issue in kiss and tell cases involving the tabloid press. It is public debate on matters of public interest that should really matter when considering what, if any, weight should be given to freedom of expression.

The right to privacy is recognised as necessary for the mental well being of those subject to intrusive media attention. No matter who they are, people need to have personal space and the comfort of knowing the media does not have a free hand in exposing their private activities and of knowing they can get out and about without constant media attention. The Mosley case brought into focus the fact that if a right to privacy is to be recognised, it should not be dependent on moral judgements about what is worthy of protection. By and large all individuals, no matter who they are, should be entitled, in equal measure, to have their privacy protected unless compelling reasons exist why that right should be withheld or forfeited. It should not be sacrificed other than on a principled basis and certainly not on a whim. There must, at least, be some serious issue of public concern involved.

The modern perception is that it is as much in the public interest to uphold the right to privacy as it is to uphold the right to freedom of expression. When these two rights are in conflict the court is concerned to reach a result which best serves the overall public interest. Reconciling the competing rights is greatly simplified if privacy normally gives way to freedom of expression only where a pressing need to expose a matter of serious public concern is identified (in contrast, for example, to run of the mill tabloid gossip). The difficulty arises in the marginal grey areas where there is a weak claim to privacy (eg a trip to the shops). Here, in the wider public interest, privacy may have to give way to freedom of expression. It depends on the facts.

The criteria used in traditional breach of confidence claims continue to be relevant to the new privacy law. In Mosley it was said that the claim was partly founded, as in McKennitt v Ash upon "...old fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information". This is important because it shows that practitioners continue to bring claims in respect of wrongful disclosure of personal information (where appropriate) for breach of confidence in addition to invasion of privacy on the same facts. The courts tend to treat such dual claims as one cause of action although the claim is stronger if a breach of confidence can be established.

Personal information acquired by an invasion or violation of personal space (eg surveillance, clandestine recording or use of a telephoto lens) is usually regarded as private. It was said in the Mosley case to be fairly obvious that the clandestine recording of sexual activity on private property must be taken to give rise to a reasonable expectation of privacy in respect of the information recorded. This is obvious now but it might not have been so obvious when the new privacy law was developing.

It was said in Mosley that in privacy cases generalisations are best avoided and the questions must be addressed in light of all the facts. Even celebrities and public figures have a right to a distinct and protected private life and that eating into their private space cannot be justified by simple reliance on somewhat irrational generalisations such as "courting publicity" or "acting as a role model". Sports stars are frequently labelled "role models" without wanting (or deserving) the distinction. The real issue is whether there is genuine public interest in exposing the activities of the individual in question.

Mosley

has assisted in clarifying other areas too as the following statements illustrate. "Public figures" are entitled to a private personal life and this extends beyond sexual activities to personal relationships generally. People's sex lives, for example, are to be regarded as essentially their own business. Those who participate in sexual or personal relationships may be expected not to reveal private conversations or activities. Drug dependency is a matter which an ordinary person might want to keep private. As to ordinary day to day activities it is difficult to draw a distinction between family and sporting activities (an individual's private recreation time) and something as simple as a walk down the street or a visit to the grocers to buy milk. It has been said that an expedition to a cafe is at least arguably part of an individual's recreation time intended to be enjoyed as such and that publicity of it is intrusive and such as adversely to affect such activities in the future. As indicated earlier, it all depends on the facts.

It was underlined in Mosley that it in assessing the relative worth of competing rights, it is not for judges to make individual moral judgements or to be swayed by personal distaste. It is not simply a matter of personal privacy versus the public interest. It is a question of taking account of the conflicting public interest considerations (privacy versus freedom of expression) and evaluating them according to increasingly well recognised criteria.

Mosley

underlined the fundamental importance of upholding duties of confidence. It is in the public interest, for example, that contractual terms are generally held to be sacrosanct. In practice, if breach of confidence is established (eg violation of a confidential relationship or breach of a contractual term) a claim cannot realistically be defended simply on the basis of freedom of expression. Mosley is particularly illuminating because it was said that to defend the claim would require establishing one of the "limiting principles" in particular the public interest that confidences should be preserved and protected by the law and may be outweighed only by some other public interest favouring disclosure.

One area that required clarification was sexual activity. It was said in Mosley that 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. It was said in Mosley to be highly questionable whether in modern society the concept of iniquity can be applied to sexual activity, fetishist or otherwise, conducted between consenting adults in private.

It was said that if the court identifies an infringement of an individual's right to privacy (in particular in the context of freedom to conduct sex life and personal relationships) it is right to afford a remedy and to vindicate that right and that the only permitted exception is because one at least of the established limiting principles comes into play eg (1) the exposure of illegal activity (2) to prevent the public from being seriously misled by public claims which turn out to be untrue and (3) because the information would make a contribution to a debate of general interest. The press and broadcast media must take note of this because the tabloid press cannot rely on such factors in the average kiss and tell story.

Robert Deacon

January 2009