On 24th July, 2008, the High Court of Justice, Queen’s Bench division has held that the camouflage recording of sexual relationship on private place was a contravention of privacy. This case has framed a two-phase litmus test for “abuse of private information. ’ o Whether there is any reasonable anticipation of privacy in the disclosed information? o Whether there is any overriding of public interest that validates the publication of information. o Is it infringes the freedom of expression privilege as enshrined under the Article 10 of the ECHR.
Justice Eady J held that News paper action of exposing private affairs results in intrusion of Mosley’s privilege to privacy under the Article 8 of the ECHR. Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. Justice Eady held that publicity of sexual activity in a private place and camouflage recordings are unambiguous interference. Justice Eady discarded arguments that Mosley’s party or orgy cannot be constituted as private, due to participation of many people, money and video cameras.
Justice Eady also held that a NotW journalist’s warning to come out with the names of other paid accomplices in the party unless they offered an interview was also resulted in the infringement of their human rights and also falls under law on extortion. The importance of this case is that it applied Mosley’s claim within the modern human-rights fashioned British law of confidentiality, which presently safeguards confidentiality even when there is no earlier established relationship between the plaintiff and the defendant.
Justice Eady held that action of the women E who infringed the confidentially for ? 25,000 would also fall under British confidentiality law in addition to ECHR laws. However, another question posed by the defendant in this case whether it has every right to carry out such information as it is protected under the article 10 of the ECHR. Article 10. 1. Everyone has the right to freedom of expression. Court has also dealt whether exposure of a private affair by defendant in public interest will exonerate him under ECHR from the indictment.
Thus, the harmonising of privacy and publication to find out whether there existed any public interest in Mosley’s private affairs. Justice Eady turned down the claim of the defendant that Mosley’s orgy required to be condemned for the criminal nature of offence namely adultery and immorality. It is to be observed that in case of adultery , Mosley’s wife will be only right party to sue against Mosley and not the defendant namely News Group Newspapers Ltd. However, defendant also pleaded that Mosley’s parties were Nazi-themed.
Defendant stated that Mosley’s family had Nazi connections and in fact, Hitler was present as a guest of honour in Mosley’s parent’s marriage. One another weak point in this case is that the women E did not appear at the time of hearing to testify and as such, the defendant had to solely rely on the video clippings. Justice Eady methodology was to meticulously analyse the video of said concentration camp with that of real activity in a concentration camp.
Justice Eady found that role-playing failed to coincide with that of ‘judicial set-up’ as Mosley was in fact in a concentration camp for offences, rather than ethnicity. Further, justice Eady was of the opinion if Mosley desired to have a Nazi topic, he could have obtained Nazi outfits that is available throughout Britain. Further, defendant solely depended on the interview with the one of the women who participated in the orgy and secretly filmed the incidence with the help of a cameral hidden in her closing which was offered by the defendant.
Thus, it denotes that defendant had masterminded the strategies and got trapped the plaintiff clandestinely. The plaintiff relied upon solely in the circumstance of aggravation of damages and in support of claim for exemplary damages. Plaintiff contended that the cause of action is infringement of confidence and unlawful dissemination of personal information and as such, it is claimed to violate the plaintiff’s privileges of privacy as safeguarded by Articles 8 of the European Convention on Human Rights on Human Rights and Fundamental Freedoms.
[ECHR]. Court was of the opinion that a Sado-masochistic practice, where adultery was involved, was not a subject of real public interest warranting intrusion by the media especially in the private life of an individual. In case of claim for infringement of privacy, no exemplary damages are awarded by the Court and in case of a claim for compensatory injury may mirror an iota of aggravation. For deciding infringement of privacy, certain standards will be applied by the Court especially in assessing the quantum of compensatory damages.
In summary, Justice Eady found the following: ? Plaintiff had a realistic hope of privacy concerning sexual activities despite that being eccentric that have occurred on between consenting adult players on private property. Justice Eady was of the opinion it cannot be construed that the orgy conducted on 28 March 2008 was meant to be a replay of Nazi behaviour or perusing of any its characteristics or it was a mockery of sufferers of the Holocaust.
? Orgy or party resembled the distinctive S and M attitude which based on the principles of bondage, domination and beating. Since it was a real private party, there is no justification of publishing the photos and video footage in the defendant’s website that too on a large scale. Justice Eady was of the view that such attitude is regarded by some individuals with revulsion and moral displeasure, but in background of modern jurisprudence that does not offer any rationalisation for the invasion on the personal privacy of the plaintiff.
? Justice Eady was of the opinion that this case relates to strange facts of recent origin but with well-known principles. He also was of the opinion that this case should not be construed as an impediment for the development of investigation journalism into wrongdoing or crime, where there is genuine involvement of public interest. ? Due to above facts, Justice Eady was of the opinion that the plaintiff is entitled for a financial remedy for the injury to feelings, discomfiture and adversity caused.
? Justice Eady recalled the plaintiff’s concern about extensive damage caused to his image due to act of defendant and observed that no amount of damages can fully recompense the extent of damage caused. After carefully considering the above facts, Justice Eady came to a conclusion that Mosley deserved for damages and awarded a damage of ? 60,000 and defendant had also to meet the legal expenses incurred by Mosley in this case. Justice Eady acknowledged the defendant’s argument that they never thought or portrayed Mosley as Nazi and hence he excluded defendant from punitive or exemplary damage.
Courtney from Study Moose
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