Max Mosley and the English right to privacy.

• Published date: 22 September 2011
• Author: Stanley, James E.
• Date: 22 September 2011

INTRODUCTION

On March 30, 2008, the British weekly tabloid News of the World published a characteristically scandalous and salacious piece of journalism. (1) Entitled "F1 Boss Has Sick Nazi Orgy with Hookers," (2) the article described the participation of Max Mosley, (3) then-President of the Federation Internationale de l'Automobile ("FIA") (4) in a sado-masochistic orgy with multiple prostitutes. (5) The article was accompanied by images of the alleged orgy, and News of the World's website simultaneously published the print edition's content along with edited video footage of the sex acts. (6) A follow-up story ran on April 6, 2008, in which one of the women involved in the sex acts was interviewed by the newspaper.

After a failed attempt at an injunction, (7) Mosley predictably filed suit for damages against News Group Newspapers Ltd., the publisher of News of the World. However, his initial suit was not one for defamation or libel because the allegations in the story were, for the most part, factually correct. (8) Instead, Mosley alleged both "breach of confidence and/or the unauthorised disclosure of personal information," (9) and claimed the latter offense had infringed his "rights of privacy as protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms" ("Convention"). (10) For these alleged abuses, Mosley sought exemplary (11) and compensatory damages. (12)

Columnists in the English press were noticeably anxious about the nature of Mosley's claims. Upon seeing the grounds for the lawsuit, a few commentators went so far as to characterize Mosley's suit as a major threat to press freedom. (13) The claim of breach of confidence was common enough, but the principal reason for the apprehension was Mosley's insistence that his "rights of privacy" had been violated. To recognize this claim, journalists opined, would be contrary to the history and spirit of English law. (14) After all, less than five years had passed since the House of Lords flatly rejected the "previously unknown tort of invasion of privacy" as a cause of action. (15) During the run-up to the decision in Mosley, there was thus much discussion of a potential landmark privacy ruling. (16) As the trial progressed, the major theme of the Mosley v. News Group Newspapers Ltd. coverage shifted from the salacious facts being tittered about in court (17) to whether the outcome would substantially change English law. (18) Specifically, the issue became how the press could treat private information, especially in the context of a celebrity expose.

On July 24, 2008, Mr. Justice David Lady (19) of the Queen's Bench delivered the judgment of the court. The court held that Article 8 of the Convention mandated the protection of a privacy interest distinct from traditional breach of confidentiality and that News of the Worm violated this right. (20) In its decision, the court relied on a number of recent cases that helped establish this right. (21) It also ruled that the paper's allegations of a Nazi theme were incorrect based on the record, and that there was thus no public interest in the story to overcome protection of Mosley's right to privacy. (22) The court stopped short of awarding exemplary damages, but did award 60,000 [pounds sterling] in compensatory damages, (23) a record amount for an action asserting a right to privacy, and payment of Mosley's attorneys fees, estimated to be around 450,000 [pounds sterling]. (24)

The announcement of the decision gained the full attention of the press worldwide. (25) Despite the court's assertion that this was not a "landmark" decision,26 a great number of stories labeled the ruling as such. (27) Unsurprisingly, much of the coverage and commentary was negative, as vocal journalists, citing concerns for the survival of their industry, complained of a judicially created right that effectively allowed the rich to gag the press at their leisure. (28)

Indeed, Mosley marked a landmark moment for the English right to privacy for several reasons, which this Note explores in four sections. Part I illustrates how Mosley's recovery for invasion of privacy is at odds with centuries of English common law and marks the triumph of a movement that has circumvented prior judicial and legislative refusals to recognize such a stand-alone right. Part II explains how, despite England's long history of denying a privacy tort's existence, the last ten years have seen the necessary emergence and evolution of a de facto right to privacy under the influence of the European Convention on Human Rights. Part III analyzes the Mosley opinion itself: how it drew upon recent precedent, how it extends that precedent, and how it crystallizes the balancing test for privacy interests going forward. This section will argue that Mosley itself is an atypical "landmark" case because the heavy lifting for the decision had been done in earlier cases. It will also demonstrate that the holding of Mosley does not present as grave a threat to the press as the media claimed. Finally, Part IV addresses what may eventually be the lasting legacy of Mosley's case: his recent failed appeal to the European Court of Human Rights in Mosley v. United Kingdom. (29). In this section, I argue that the Mosley decision in the English court ought to be the furthest extent of this new fight to privacy, and that the Court of Human Rights recognized this in its recent opinion. Part IV concludes by discussing some of the dangers of Mosley's demand for a system of prior notification and why the court rejected such a requirement,

I. THE HISTORICAL REJECTION OF PRIVACY AND RELIANCE ON CONFIDENTIALITY LAW

The Mosley opinion relied on precedent in protecting a fight to privacy, but even the court admitted that its guiding doctrine was "recently developed." (30) Indeed, from a more expansive vantage point, the right recognized and protected in Mosley is a very novel one. English law historically rejected the recognition of a distinct "right to privacy." (31) Until recently, this held true for both Parliament and the judiciary. (32) This is not to say that "privacy" as an interest was never protected, it was simply never considered a stand-alone right, especially insofar as the "right to privacy" is understood to be "the interest in controlling the disclosure of public information about oneself." (33) When faced with allegations of an invasion of personal privacy, English courts traditionally allowed recovery only if the claim came in conjunction with the assertion of a more established right. (34) These included, but were not limited to, the equitable remedy of breach of confidence, several torts related to intentional infliction of personal harm, and the principles governing the appropriate use of police powers. (35) Of these indirect protections for privacy, confidence was the path most frequently traversed. (36)

The English breach of confidence tort has its foundation in the 1849 case of Prince Albert v. Strange. (37) In Prince Albert, William Strange came into possession of etchings and drawings that Queen Victoria and her husband, Prince Albert, had made of the royal family. (38) The court enjoined his attempts to sell a catalog based on the etchings under the theory that his possession "originated in a breach of trust, confidence, or contract" by the clerk of the royal printer, and that the duty of confidentiality owed by the clerk to the Queen and Prince extended to subsequent holders of the etchings. (39) Although Prince Albert was not actually the first breach of confidence case, (40) its fundamentality to the doctrine has gone unquestioned because it provides perhaps the clearest example of a case relying on a theory of confidence, it involves famous plaintiffs, and it extended the doctrine to cover breaches by third parties. (41)

The modern English confidence tort saw its most lucid articulation in the 1969 case of Coco v. Clark. (42) In Coco, the court declared three elements necessary for the formulation of a breach of confidence claim: (1) the information had to have "the necessary quality of confidence about it"; (2) it must have "been imparted in circumstances importing an obligation of confidence"; and (3) there must have been "unauthorised use of that information to the detriment of the party communicating it." (43)

Since then, scholars have praised the adaptability and practicality of protecting privacy interests through confidentiality. (44) Because this approach focuses on the nature of the relationship between the parties and not on the nature of the information itself, it has some distinct advantages over the traditional American or European fight to privacy. (45)

However, the unsatisfactory nature of confidence, especially its failure to adequately protect against public disclosure of private facts not imparted to another, has also been long noted and lamented by scholars of English law. (46) Because of confidentiality's traditional focus on prior relationships, there was little or no redress in situations where an unknown party came by the information in the absence of such a relationship. (47) This stands in contrast to the traditional American right to privacy. (48) As early as 1963, the English practice of stretching or failing to stretch the confidentiality doctrine to fit clear violations of privacy was viewed by some as impractical. (49) And with the resurgence of tabloid journalism of the same sort decried by Warren and Brandeis in their seminal article, "The Right to Privacy," (50) the shortcomings of relying on confidentiality and a patchwork of other rights became all too apparent. (51)

The most notorious judicial rejection of a stand-alone right to privacy in English law occurred in the 1991 case of Kaye v. Robertson. (52) In Kaye, a celebrity (53) recovering from brain injuries sustained in a car accident was photographed and "interviewed" by a tabloid journalist...