Mosley v News Group Newspapers Limited (9 April 2008)
Background
The case concerns an application made by Mr Max Mosley, the F1 boss, for an injunction against publisher of the News of the World newspaper to restrain it from making available on its website a short extract from a videotape of a session devoted mainly to activities which were 'conveniently described as “S and M”' and 'seemed to consist mainly of people spanking each other's bottoms'.
The claimant did not dispute that the events occurred but maintained that the activities were private and that the publication violated his rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms and the application was based upon the alleged infringement of his privacy. The claimant also challenged the accuracy of the newspaper's characterisation of his activities as being Nazi role-play.
There were of course huge public reactions after the publication of the extract, some of which were specifically related to the allegation of Nazi role-play and from major auto manufacturers participating in formula one racing such as Mercedes-Benz and BMW (in reaction to which the Claimant said “Given the history of BMW and Mercedes-Benz, particularly before and during the Second World War, I fully understand why they would wish to strongly distance themselves from what they rightly describe as the disgraceful content of these publications”).
The Judge also did not consider the edited footage showed convincingly that the claimant's was engaging in Nazi role-play and reasserting and that the objective (putting the record straight) can be achieved effectively 'without displaying the edited footage of bottoms being spanked'.
Decision
The judge, Mr. Justice Eady, ruled that ('with some reluctance' in his own words), although the material was intrusive and demeaning, and despite the fact that there was no legitimate public interest in its further publication, the material was so widely accessible that an injunction would make very little practical difference. The judge said in conclusion:
“One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst.”
And that,
“Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen.”
^