Max Mosley was hoping that the ECHR would obligate the UK to require the media to warn people if there is an intention to publish information that might affect those rights of privacy. The ECHR rejected the application on the basis that freedom of the press can only be limited in a restricted manner in order to comply with article 10 of the Convention, which guarantees freedom of expression.

The Grand Chamber of the ECHR has rejected Max Mosley’s attempt to have the ruling reconsidered, and has confirmed that the ECHR’s ruling was final, bringing an end to his long-running attempt to introduce a pre-notification requirement in the UK.

The High Court has ruled that the information contained in the article published was, in principle, protected by article 8. However, the High Court also ruled that there was a public interest in the publication of the article, based on:

1. an objective consideration of the public interest and what was significant to modern society, in particular that Ferdinand had occupied a high-profile position and the article published called into question his suitability for that position;
2. previous case law which suggested that the position of captain of the England football team was a role from which a higher standard of behaviour from the occupant was needed. This was particularly true at a time when the previous captain of the England football team, John Terry, had lost the position to Ferdinand for an extra-marital affair with the partner of a teammate; and
3. the fact that Ferdinand had, for some years, professed to be faithful to his wife – the article published had additional public interest if it proved that public claim to be false.

The High Court ruled that the article had not excessively infringed Ferdinand’s private life, and that the publisher’s right to freedom of expression outweighed Ferdinand’s right to privacy, with the justification based on public interest. The High Court has previously ruled in favour of people who have had their private lives exposed in many previous cases, so it is interesting to see a successful use of the public interest argument in practice.

It seems that Ferdinand’s own goal in seeking to project a particular public image may have cost him victory this time.

The Court of Appeal has dismissed the ex-employee’s appeal. Although Article 8 could be engaged, it did not follow that he had a reasonable expectation of privacy, particularly after his public quarrel. However, even if he had a right to privacy (which was borderline), it had to be balanced against NGN’s competing right to publication in the public interest and NGN’s Article 10 strong rights outweighed any privacy rights in this case. Of course, any allegations had to be proved and stand up to the law of defamation. In relation to any privacy rights, the Court emphasised that anyone conducting their arguments in public might find it harder to later distinguish between what was public and what was legitimately private, and this applied regardless of whether they were public figures or not.

Whilst the Court of Appeal did not disagree with the High Court’s conclusions on that, it said that the male celebrity’s teenage children’s privacy rights tipped the balance in favour of privacy rather than publication. Children’s rights would be a primary consideration, although would not always act as a trump card if there was sufficient public interest justifying publication. However, this was not such a case. The public interest in reading about the story would not be so great as to warrant the children’s embarrassment and playground bullying that would inevitably follow.

The Mirror – which is owned by MGN – had published a story about the model’s treatment for a cocaine addiction. Ms Campbell had accepted that in light of her previous protestations against being a drug addict, the newspaper had been entitled to say that she was in fact a drug addict and was receiving treatment for her addiction. What she had objected to was the fact that she was receiving treatment at Narcotics Anonymous and details of where, when, how and how often her treatment was running, as well as intrusive photos of her taken with a long lens outside the clinic.

The House of Lords had agreed with her by a majority ruling of three to two. The majority had agreed that she would need considerable privacy in order to deal with her condition and this had been unnecessarily infringed with detail that added to readers’ curiosity but did not add anything to the story’s credibility. The minority, however, had found the disputed material to be unremarkable and the press could legitimately include extra detail.

The ECHR has now backed up the House of Lords’ ruling. Freedom of expression was an important democratic right and any interference with it had to be relevant and sufficient and proportionate to the legitimate aim pursued. Methods of objective and balanced reporting could vary significantly and it was not for courts to substitute their views for those of the press, but editorial discretion had its limits. Publishing the photos and details were solely intended to satisfy the readership’s curiosity as to a public figure and were not in the public interest. The way the photos were taken was also intrusive. It said that the three English courts culminating in the House of Lords had carefully considered the facts of the case and it would not interfere with the final decision. They had made compelling arguments that publication of the disputed material could be harmful to her treatment and was not necessary.

The ECHR added that MGN would not have to pay Ms Campbell’s solicitors’ extra success fee, however, as that was an interference with MGN’s freedom of expression rights.

The High Court continued an injunction preventing publication about the relationship as well as the identities of the parties  and those of the journalists, assistants and public relations advisers. The crucial issue was determining whether the intrusive revelations were likely at trial to be classed as embarrassing tittle-tattle rather than serving a more valuable function. The judge said that the story was neither in the public interest nor would contribute to a debate of interest to society. It was necessary and proportionate to protect the privacy rights, at least until the full trial, of all involved and this extended to non-parties such as the claimants’ teenage children and not just the parties themselves. The decision as to determining whether publication would be in the greater public interest than the protection of privacy rights would be for the court to decide at trial, and not the newspaper.

The Court of Appeal has now decided that the injunction should continue as his privacy should be protected even if the details that were going to be revealed were not of a sexual nature. The High Court had correctly weighed up the competing interests of privacy including protecting the children involved, and freedom of expression. That decision should not be interfered with. However, the super-injunction should be lifted, so we are now able to know the parties involved, even if we do not know all the details of what was going to be discussed. Open justice determined that the minimum amount of restrictions should be imposed on court reporting. There was no need to prevent people knowing that there had been a case – just the details that Ms Ntuli had wanted to divulge.

In a welcome ruling for the downtrodden UK media, the High Court decided that what Terry was really concerned about was protecting his sponsorship and endorsement deals rather than his privacy rights. To obtain an injunction in privacy cases, a claimant has to establish that he had a reasonable expectation of privacy, there was no public interest in disclosure and an injunction would be a proportionate remedy. The judge said that it was important to bear in mind the right to freedom of expression under the Human Rights Act, as well as the right to privacy. While respect for private life meant people should live freely according to their own choices, their conduct did not have to be illegal before it could be criticised in public. The freedom to live as you choose is a valuable freedom, but so is the freedom to criticise people’s actions (within the boundaries of the law) for being socially harmful or wrong. Even if Terry’s rights to privacy would prevail, an injunction would not be a necessary remedy, as damages would be sufficient to compensate him for loss of money from his reduced sponsorship contracts.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This case shows just how much of a mess the law of privacy is in this country – although admittedly not quite as much of a mess as the private lives of certain high-profile footballers. Following the recent groundbreaking privacy win for Max Mosley when he was able to claim damages for publication of his sexual exploits and the injunction granted in favour of a married Premier League manager to stop details of his brothel escapades being published, it was thought the British public might never get to read gossip again. As this judgment shows, that’s not necessarily so. However, the dividing line remains unclear and it is creating an enormous headache for the media to know what they can publish and what they can’t. The law of privacy badly needs clarifying.’

After he was severely injured in the great storms of 1987, Gorden Kaye, the ‘Allo ‘Allo actor, was unable to stop the press intruding in his hospital ward and taking photos of his injuries. However, since the introduction of The Human Rights Act 1998, a creeping law of privacy has been developed by the courts. The 1998 Act gives people a right to have protection for their private lives even if they are famous, although this has to be balanced against the press’s right to freedom of expression. Cases have gone each way with some people being protected and others not.

More recently, particularly with the case of Mosley v News Group Newspapers last year – when Max Mosley was able to claim record damages for breach of privacy because of The News of The World’s reports of his German uniform styled orgy session – the courts have been taking a more pro-privacy line. For more on that story, click here: http://www.upload-it.com/editArticle.aspx?ID=2746.

In the current case, The Sun alleges that when he drove up to the brothel the unnamed married boss – dressed in branded football training clothes still – smiled and shamelessly admitted that he knew it was a brothel. That would be no justification to naming him, though. At least, that was The Sun’s concerns based on the current state of the law.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘There should clearly be a right for people to be able to go about their everyday lives without being hounded in the way that Princess Diana was, even if they are celebrities. However, it is questionable whether famous married people taking no steps to hide their moral misdemeanours deserve that right. This was not something that went on behind closed doors and if the married manager was really that flippant about his antics, why should his privacy be maintained? There is clearly a distinction between what is in the public interest and what is interesting for the public. In a lot of cases, even celebrities should be entitled to a private life. However, in my opinion the dividing line between freedom of expression and protection of privacy is in the wrong place if someone who has chosen to be in the public eye conducts himself in public in a highly questionable fashion and the press is unable to report on the grounds of respect for his privacy.’

What do you think of this situation?