Mosley v News Group Newspapers Limited (24 July 2008)

The is the latest of a series of prominent "privacy" cases under Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms and the Human Rights Act 1998, e.g. Von Hannover v Germany (2004) 40 EHRR 1, Douglas v Hello! Ltd. [2001] QB 167 and Campbell v MGN Ltd [2004] 2 AC 457

The background of the case is set out in the article relating to the claimant's earlier application for an injunction. In the present proceedings, the defendant advanced two alternative defences: first, it is said that the claimant had no reasonable expectation of privacy and, alternatively, the claimant#39;s right to privacy was outweighed by a greater public interest in disclosure.

The judge found that there was nothing suggesting Nazism in the activity of the claimant on 28 March 2008, still less the claimant had ordered a Nazi or concentration camp scenario and there was no legitimate public interest to justify either the secret filming or the subsequent publication.

There was a suggestion that some of the women were wearing Nazi clothing, but the journalist who wrote the article, NT, himself ultimately recognised that what was worn was simply "foreign uniform and ordinary blazer". The judge said that because it was assumed that there was Nazi role-play, non-Nazi clothes had to be explained as "pretend" Nazi clothes.

"This is an approach that is not uncommon when witnesses in court are trying to defend a certain position under cross-examination. If it is believed that a particular state of affairs came about, it becomes necessary to explain away any indicators to the contrary."

The judge considered this willingness to believe in the Nazi element and the mocking of Holocaust victims

"was not based on enquiries or analysis consistent with "responsible journalism". Returning to the terminology used by Lord Bingham in Jameel (cited above), the judgment was made in a manner that could be characterised, at least, as "casual" and "cavalier"".

The judge also found that the defendant had not bothered to get a translation of the German uttered during the role-play which contained "certain amount of explicit sexual language" but had no Nazi connection.

The newspaper also accused the claimant of playing a concentration camp commandant, but he did not wear any kind of uniform and was dressed (if at all) only in white shirt and the dark trousers of a business suit. Moreover, the nom de guerre used by the claimant for this kind of activity were "Mike" and "Tim Barnes" (he was also referred to by the women as the "El Presidente" (presumably because of his role in the FIA)), which did not also seem to make sense if the Claimant was supposed to be playing a Nazi officer or concentration camp commandant.

The claimant was greeted with the words "Welcome to Chelsea" which according to statement made to the press by the claimant, he would be rather "disappointed" if he was expecting a "dead camp" theme!

The judge was also rather critical of NT's behaviour following the publication of the newspaper article on 30 March 2008 which the judge said "appear to contain a clear threat to the women involved that unless they cooperated, their identity would be revealed" and that it was a "remarkable state of affairs" that the editor of the newspaper did not query such behavior. The judge also remarked that "The real problem, so far as Mr Thurlbeck is concerned, is that these inconsistencies demonstrate that his "best recollection" is so erratic and changeable that it would not be safe to place unqualified reliance on his evidence as to what took place".

The judge also held that "Woman E" who recorded the event with a concealed video camera had committed a breach of confidence because of the nature of her relationship with the other participants.

The judge was clearly not unmindful of the possible criticism of "moral relativism" but he believed it was "largely because of a failure to appreciate the task which judges are now required to carry out in the context of the rights-based environment introduced by the Human Rights Act, hitherto largely unfamiliar in our common law tradition. In deciding whether a right has been infringed, and in assessing the relative worth of competing rights, it is not for judges to make individual moral judgments or to be swayed by personal distaste."

On "editorial judgment", the judge said that a "decision on public interest must be capable of being tested by objectively recognised criteria" and doubted that "a journalist's sincere view on public interest, however irrationally arrived at, should be a complete answer".

He also noted that as Sir John Donaldson MR observed in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892, 898, "The media...are peculiarly vulnerable to the error of confusing the public interest with their own interest".

The claimant said that the intrusion and publication was "outrageous" and asked for exemplary damages. Having carefully reviewed the authority, the judge ruled that exemplary damages was not admissible in a claim for infringement of privacy under English law and awarded the claimant £60,000 damages.

Other Evidence

"The Claimant, for reasons best known to himself, enjoyed having his bottom shaved - apparently for its own sake rather than because of any supposed Nazi connotation. He explained to me that while this service was being performed he was (no doubt unwisely) "shaking with laughter". I naturally could not check from the DVD, as it was not his face that was on display."

"Judicial and/or prison scenarios are, according to the evidence, very common forms of role-play on the S and M 'scene'."

"As to the use of the German language, Woman D gave evidence that she was turned on by the thought of being interrogated, while she was in a submissive role, by people using a foreign language which she did not understand. It added to the sense of helplessness and having no control. She had originally heard the Claimant and Woman B speaking German at a gathering towards the end of January or beginning of February (simply because they had the language in common) and suggested to Woman A that it would be a good idea to incorporate the further use of German in a scenario later on...As was further explained, to many English ears at least, the language is perceived as having a harsh and guttural sound and is thought to be more suitable for use by those playing a dominant role in S and M scenarios than (say) French or Italian. Apparently Russian might have also been suitable, but unfortunately none of the participants spoke Russian."

"It was put to the editor and Mr Thurlbeck that the reason why Woman E was only paid £12,000 after she delivered the video material, despite having been offered £25,000 previously, was that they had been disappointed by the lack of Nazi content - a pertinent question. This was denied and the editor gave the reason that they like to renegotiate downwards, when in a strong bargaining position. They were affected by the credit crunch like everyone else."

"There was, of course, plenty of spanking, and references to 'judicial' penalties, but the only passage which is relevant for this purpose relates to an occasion when one of the women was lying face down on the sofa while being given intermittent and rather lack-lustre strokes with a strap."

"It is probably appropriate at this point to address another remark from time to time used by Woman B. She uses the term "Schwarze" when she is acting out a dominant role in relation to one or more submissive females. The suggestion was that she was pretending that they were black and racially abusing them...It seems more natural to interpret her remark in context as referring to the woman's dark hair (which she had) rather than to dark skin (which she did not)...In any event, it could hardly be suggested that the blondes were accorded any more respectful treatment (as "Aryans") than the brunettes. One of them is abused as a "dumb ass blonde" (in German) and the spanking is indiscriminate in this respect."

"Perhaps the most artificial argument, verging on desperation, was to the effect that the Claimant was inciting or aiding an offence of assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861 - on himself. There was actual harm and perhaps the application of the large piece of elastoplast on his right buttock would demonstrate, as Mr Myler and Mr Thurlbeck pointed out, that there had been actual wounding as well. (That might be the case also, technically, with decorative piercings.)"

"it is right to acknowledge that some of the young women playing the submissive role also developed a visible coloration of the buttocks. As Woman D accepted, it was painful - "but in a nice way". Although no doubt interesting to the public, was this genuinely a matter of public interest? I rather doubt it."

"Another argument thought up by the Defendant, or rather its legal team, was that the Claimant had been keeping a brothel. This would not bear close scrutiny and is certainly not consistent with the evidence. By the time of closing speeches, this line of argument had been abandoned. It seems clear from the authorities that for premises to fall within the definition of a brothel it is necessary to show that more than one man resorts to them for whatever sexual services are on offer. The only man enjoying the activities in this case was the Claimant himself...He was the only one paying, although I was told that it was a standing joke among some of the regulars that they had so much fun that they ought to be paying 'Mike'."

"Mr Price pointed out that the newspaper would have available to it information as to the identities of the various Women A to D (from Woman E) and could check their dominatrix activities from the relevant websites. Photographs could be taken of them arriving and departing as well as of the Claimant. This was in fact done. They could also obtain a statement from Woman E as to what had transpired. Crucially, she would be able to produce the money to confirm her story that she had received payment from the Claimant on that occasion…All that information would normally be considered enough to plead justification if there was a claim for libel. The journalist's response to the effect that the Claimant might just have been going to the flat (for several hours) for the purpose of changing a fuse and having a cup of tea is hardly convincing."