Mosley seeks referral to Grand Chamber

For this Kat, it feels just like another day, another privacy issue before the Courts. Yesterday Max Mosley's solicitors, Collyer Bristow, announced that Mr Mosley has made a request under Article 43 of the European Convention on Human Rights and Rule 73 of the Rules of the Court for his case to be referred to the Grand Chamber of the European Court of Human Rights. As will be recalled, last month the Fourth Chamber refused to his arguments that the UK government was obligated to implement a pre-notification requirement in privacy cases. See this Kat's earlier post here.

In written submissions, the esteemed Lord Pannick (at [9]) on behalf of Mr Mosley contends that a serious issue of general importance is whether the Grand Chamber should accept that:

'in cases where a newspaper, or other publisher, intends to disclose “intimate or sexual details of private life” (the phrase used by the Fourth Section at paragraph 125) the newspaper or other publisher should be required to give advance notice of the publication so that the individual concerned can seek an injunction from the court to prevent publication in breach of Article 8'.

One of the difficulties faced by Mr Mosley before the Fourth Chamber was its concern that he was not limiting the pre-notification requirement to 'intimate or sexual details of private life' (at [125]) and that accordingly a general obligation to give advance notification might inhibit investigative journalism. Lord Pannick confirms (at [10]) that Mr Mosley is 'entirely content to confirm that his argument is limited to such cases'.

Pre-notfication in such cases was an issue of very considerable general importance in the UK, as

'certain sections of the press, such as The News of the World, trade in the disclosure of intimate or sexual secrets of people's private lives' (at [12]).

In its press release, Collyer Bristow states that:

'Privacy has been the subject of considerable public and media debate in the last month and a ruling from the Grand Chamber of the Court is needed upon this important issue to close a clear gap in UK law'.

The next stage is for the request to be examined by five judges of the Grand Chamber, a process which can take up to 6 months.

The IPKat admires Mr Mosley for following through with his harsh criticism of the decision of the Fourth Chamber. However, he is not so sure that a limitation of the pre-notification obligation to sexual cases will be enough to secure the result which Mr Mosley so badly wants.

Merpel is not one for waiting, but she notes that the decision could be a very good or a very bad Christmas present for Mr Mosley.

Super Injunctions: the IPKat reveals all ...

It is true to say that UK privacy laws have been subjected to a very public outing of late. Indeed, they have very rarely been far from the UK headlines in recent weeks.

Most notably there has been the speculation and furore on Twitter and the rest of the Internet as to the identity of well-known individuals who had taken out injunctions to prevent details of their indiscretions being made public. In the last week alone, this has included speculation of: an alleged affair between two married stars of a popular UK television show; an alleged encounter between a married British actor and escort Helen Wood; an alleged relationship between a married Premier League footballer and former UK Big Brother housemate Imogen Thomas; the alleged visits of a married British actor to various ‘spanking establishments’ to engage in BDSM activities; the alleged sexually harassing conduct of a married British TV personality towards his female members of staff; an alleged relationship between Top Gear’s Jeremy Clarkson and socialite Jemima Khan (which has since been denied by both parties); and an alleged relationship between former England international footballer Alan Shearer and British TV personality Gabby Logan (which has since been denied by both parties).

Even as this Kat has been preparing this post over the weekend, the case concerning the alleged relationship between a married Premier League footballer and Ms Thomas has reached fever pitch. Late last week, it is this Kat's understanding that the footballer sought to orderTwitter to disclose the names of users who may have breached the terms of his privacy entitlement. Next, several celebrities, some with millions of Twitter followers, posted tweets at the weekend which either identified the footballer in connection to the relationship or heavily hinted at his involvement. Then the Sunday Herald in Scotland published a barely concealed picture of the footballer whom it claimed had obtained the injunction. The newspaper printed his face with his eyes blacked out and the word 'censored' written over the top. In an editorial, the Sunday Herald said it was "unsustainable" for newspapers not to be able to print information which is available on the internet.

Against this frenzy, it is almost prophetic then that on Friday the Committee for Super Injunctions should publish its report Super Injunctions, Anonymised Injunctions and Open Justice. The Committee was set up in April 2010 in order to examine well publicised issues of concern to Parliament, the judiciary, the media, and the wider public, following the Trafigura (RJW & SJW v The Guardian newspaper & Person or Persons Unknown) and John Terry cases (Terry v Persons Unknown [2010] EWHC 119). These concerns centred round the perceived growth in the use and application of super-injunctions and the increasing frequency with which proceedings were being anonymised. The Committee was composed of many pre-eminent figures in media law: Chair Lord Neuberger of Abbotsbury (Master of the Rolls and Head of Civil Justice), Desmond Browne QC (5 Raymond Buildings), Rod Christie-Miller (Schillings), Michelle Dyson (Ministry of Justice), Lord Justice Moore-Bick (Deputy Head of Civil Justice), Marcus Partington (Trinity Mirror Plc), Alasdair Pepper (Carter-Ruck), Gillian Phillips (The Guardian), John Sorabji (Barrister) and Mr Justice Michael Tugendhat. Significantly, the Committee did not consider issues of substantive law: as Lord Neuberger stated in the Forward, this would have been ‘inappropriate’. However, the Committee did comprehensively consider the nature of privacy injunctions, procedural issues and data collection.

For those new to the terminology, the Committee defines a super injunction as an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings. Further, an anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

In recent times, there has been considerable speculation as to how many super injunctions have actually been granted. Accordingly, this Kat was interested to learn that since the Terry case in January 2010, as far as the Committee was aware, only two known super injunctions have been granted to protect information said to be private or confidential. They were: Ntuli v Donald [2010] EWCA Civ 1276 (set aside on appeal) and DFT v TFD [2010] EWHC 2335 (QB) (granted for seven days for anti-tipping-off reasons). As far as the Committee was aware, applicants now rarely apply for such orders and it is even rarer for them to be granted on anything other than an anti-tipping-off, short-term, basis.

The Committee has made several important recommendations which restate well-established principles. These include:

* As they incorporate derogations from the principle of open justice, super-injunctions and anonymised injunctions, the Committee recommended that they could only be granted when they are strictly necessary. They could not be granted so as to become in practice permanent and so should be kept under review by the court.

* In relation to fast-track appeals, the Committee recommended that there was no justification for introducing a fast-track appeals process or a compulsory appeal process for super-injunctions or anonymised injunctions. This was on the basis that it was already possible to seek expedition of appeals from such orders.

* As for the use of specialist judges to hear applications for interim non-disclosure orders (including super-injunctions and anonymised injunctions), the Committee recommended that this would be neither justifiable nor practicable.

* A longstanding privilege of Parliament is the freedom of speech and debate. Any attempt by the courts to go beyond that privilege enshrined in Article 9 of the Bill of Rights 1689 would be unconstitutional. It follows that no super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings.

There are, however, a number of proposed changes to the current procedures. These include:

* Practice Guidance should be issued, setting out the procedure to be followed when applying for interim injunctions, with the aim of protecting information said to be private or confidential pending trial. These interim injunctions should in future be referred to as ‘interim non-disclosure orders’. A Draft Guidance is provided in Annex A(1) and (2) to the report.

* The Practice Guidance should be accompanied by a Model Order. A Draft Model Order is provided in Annex B to the report.

* The Ministry of Justice’s Chief Statistician should, with Her Majesty’s Courts and Tribunals Service (HMCTS), consider introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.

* Non-parties should be given advance notice of the application hearing. First, the applicant must give the non-party an ‘Explanatory Note’ (if appropriate, this may be anonymised). A Draft Explanatory Note is provided in Annex A(3) to the report. If the non-party gives an irrevocable undertaking to the court, the applicant must provide that non-party with the hearing papers prior to the hearing. A draft undertaking is provided in Annex A(2) (under Clause 13). This is the most substantial recommendation by the Committee and one which the media has been arguing for many years.

The IPKat thinks that, although this is a thorough and well-thought-out Report, the debate is far from over. Those in favour of privacy will be concerned about the increased costs and delays in the proposal to serve explanatory notes and hearing papers on non-parties as well as the general dilution of their Article 8 right to respect for their private life. Those in favour of free speech will be concerned that the recommendations do not go far enough. The Report did not consider the impact of social media, which in light of events concerning the footballer and his alleged relationship with Ms Thomas is another important element to be considered. Obviously the Court cannot stand on the sidelines while its orders are blatantly disobeyed.

Merpel would like to take this opportunity to make clear that she is not involved in any super injunctions or anonymised injunctions.

Mosley goes down in Strasbourg: no pre-notification requirement in privacy cases

This Kat has spent the morning reading today's decision in the Fourth Chamber of the European Court of Human rights in Mosley v United Kingdom.

For those unfamiliar with this case, the former President of Formula One motor racing, Mr Max Mosley, commenced proceedings in 2008 against The News of the World newspaper after it published numerous articles and videos revealing his extra-marital sex life. The article complained of was published on the front page on 30 March 2008 with the title of ‘F1 boss has sick Nazi orgy with 5 hookers’ and with the opening sentence of ‘Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert’. Several pages inside the print edition were also devoted to the story and included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities. An edited extract of the video and the still photographs were also published on The News of the World website. The print edition also invited readers to view the video online.

In the UK High Court, Mr Justice Eady concluded that the articles and images constituted a breach of Mr Mosley’s right to privacy: Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008). Eady J declined to award exemplary damages and limited the damages available to a compensatory award (at [235]). Mr Mosley was awarded £60,000 in damages (at [236]), currently the highest award of damages in a misuse of privacy case.

Mr Mosley appealed to the European Court of Human Rights. The main issue was whether the United Kingdom, in order to protect Mr Mosley’s right to respect for his private life under Article 8, had a positive obligation to impose a legal duty on The News of the World to notify Mr Mosley prior to the publication of information which intruded upon his private life so that he may have the opportunity to obtain an injunction. Several media organisations and trade associations intervened in the case (including Guardian News & Media Ltd, The Media Lawyers’ Association, The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers’ Association, European Publishers’ Council, and The Mass Media Defence Centre). In particular, they argued that (a) prior notification was inconsistent with their right to freedom of expression under Article 10; (b) the State should be afforded a wide margin of appreciation; and (c) prior notification did not reflect continental legal practices or the practicalities of journalism.

The Fourth Section of the Court of Human Rights rejected Mr Mosley’s request for a legal pre-publication requirement (at [132]). In its judgment, the Court consistently emphasised the need to look beyond the facts of Mr Mosley’s case and to consider the broader impact of a pre-notification requirement. It also bore in mind the limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest. Therefore, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court was of the view that Article 8 does not require a legally binding pre-notification requirement.

In the end practical considerations prevailed. The Court noted (at [128]) that any pre-notification requirement would only be as strong as the sanctions imposed for failure to observe it. A regulatory or civil fine, unless set at a punitive level, would be unlikely to deter newspapers and would run the risk of being incompatible with Article 10.

The conduct of The News of the World, however, did come in for some ‘severe criticism’ from the Court (at [131]). In particular, the Court made reference to how the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Further, the Court could see no possible additional contribution made by the video footage, which appeared to have been included merely to titillate the public and increase the embarrassment of Mr Mosley.

Merpel admires Mr Mosley’s endurance in this matter: whilst most would shy away from further litigation, Mr Mosley has declared his intention to fight on. His solicitors (Collyer Bristow) have released a press release which quotes Mr Mosley as stating:

“I am disappointed at today’s judgment, because I think that there is widespread recognition that privacy is fundamental to the way we live our lives. The potential for intrusion into our privacy is enormous and we need proper protection.

My current intention is to continue with my application by way a request to the Grand Chamber and I will be discussing this with my lawyers over the next few days.”

Earlier IPKat posts on the Mosley case here, here, here, here , here and here

Tiger, Kate and some musings on "privacy" cases

This Kat is intrigued by the recent increase of privacy infringement cases that have made headlines in the UK. Where have they all come from all of a sudden?

Max Mosely (see earlier IPKat post here), Sienna Miller, Tiger Woods all made headlines with privacy cases. The latest of these (potential) cases concerns Kate Middleton, Prince William's girlfriend, who reportedly has instructed solicitors, after photographs taken of her playing tennis were published in Germany. Prince William, we learn from a report published in the Telegraph, was not present when the pictures were taken. Ms Middleton appears to feel that the photographers have infringed her privacy rights and she reportedly requests that the pictures be withdrawn from publication and damages be awarded from both the photographers and the distributing agency. Again according to the Telegraph, her solicitors "have issued a warning to the photographer and to ... the agency that distributed the image" under the threat of legal proceedings.

Interestingly, the German media does not appear to have picked up on this latest privacy case at all. This is a little surprising given that privacy and personality infringement cases involving royalty and celebrities are a rather frequent occurrence in German courts. (Yes, this Kat is aware that Ms Middleton is not a member of the Royal family.) The most famous of these cases involved Princess Caroline von Hannover (also known under her maiden name: Caroline of Monaco) who took a similar matter to the European Court of Human Rights and so changed the way German law deals with privacy and personality rights infringements. In the "Caroline case" (von Hannover v. Germany, application no. 59320/00 of 26 June 2004), which concerned photographs that showed Caroline von Hannover in her everyday life, and consequently engaged in activities of a purely private nature, the European Human Right Court held that

"... (the) present case does not concern the dissemination of 'ideas', but of images containing very personal or even intimate 'information' about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution."

The Princess, it was then held, had a "legitimate expectation" that her private life would be protected. The Court also considered that the photographs had been taken without her knowledge or consent and some of them were even taken in secret. The snaps also made no contribution to a debate of public interest since they and the accompanying articles only reported on her private life. As such, the Court saw a clear violation of Article 8 of the European Convention on Human Rights (right to respect for private life). This case law still stands. Returning to Ms Middleton's case, it is pretty obvious that - depending on the actual circumstances - there could certainly be an arguable case of an Article 8 infringement or breach of privacy.

But what do our readers think? Looking at this case and Tiger Woods' recent injunction in the UK (granted by high court judge Mr Justice David Eady) against the publication of details about his private life. Details, one should add, which you can still read about in the US media via the Internet. Is this the way the law should work? Of course, Tiger Woods, was marketing his public persona through sponsorship deals and very much made his outwardly happy family life part of his public image, whereas Ms Middleton is a private person who happens to be in a relationship with a member of the Royal family. So, where do we draw the line?

Does anyone think that these privacy cases could have a chilling effect on free media reporting (see here for an interesting overview published in the Times)? Should people in the public eye be able to control what is published about them or should they be protected from intrusion by the media? Does privacy protection go far enough in this country or is there need for improvement and Max Mosley's quest to revamp privacy laws (see the IPKat earlier report here) should be supported?

If you have any comments, please post them below.

No privacy for pseudonymous bloggers

In a decision released yesterday (available from BAILII here), a pseudonymous blogger has failed in his attempt to prevent his real identity from being revealed. The blogger, previously only known as 'Night Jack', has now been revealed (see also here & here) as Richard Horton, a detective working for the Lancashire constabulary.

(right: this is all you will see now if you go to nightjack.wordpress.com)

The judge in this case, Mr Justice Eady, determined that the claimant had no reasonable expectation of privacy "because blogging is essentially a public rather than private activity". Publication of the blogger's identity did not therefore contravene Article 8 of the European Convention on Human Rights and Fundamental Freedoms. The information relating to the blogger's identity, which was found by the Times after some journalistic digging, did not qualify in the judge's view as having the necessary "quality of confidence" as contemplated by Megarry V.-C. in Coco v Clark. Any right of privacy the blogger might have would in any case be outweighed by a countervailing public interest in revealing that a particular police officer had been making the communications.

Some people write blogs under pseudonyms as a bit of fun, and would not be too bothered if their real identity were to be revealed. Others, however, who perhaps think that they can hide their true identity and write blogs that could be damaging to them if their readers knew who they really were, might want to reconsider what right they have to protect their anonymity in light of this judgment.

Hatemail Woman in Facebook Dead Cat Bag Privacy Horror Scandal

The IPKat has just received news of a terrible tale involving a dead cat, not to mention some serious issues involving live humans, thanks to Allard Ringnalda (Research assistant, Centrum voor Intellectueel Eigendomsrecht, Utrecht University, and the co-author of a book which the IPKat would love to read if it wasn't for his linguistic ineptitude). Allard writes, on behalf of his institute and, in particular on behalf of the IPKat'd scholarly friend Professor Willem Grosheide, as follows:

"Last week, a Dutch artist known by the name of ‘Tinkebell’ [IPKat note: real name, Katinka Simonse] published a book --Dearest TINKEBELL-- which contained a collection of hate mail. She received this hate mail during the years 2004-2008 after she – and I am sorry to have to tell you this – killed her cat (who is reported to have been seriously ill at the time), skinned him, and made him into a purse [IPKat note: This appears to have been the subject of a book published in 2004, My dearest cat Pinkeltje]. This work of art (its interpretations vary from a protest against the treatment of animals and pets to a comment on fashion) attracted quite some attention through her website, and some 1,000 visitors felt the urge to inform the artist about their disapproval of this type of art. I’ll not reproduce the expletives used in these e-mails here, but I’m sure you can imagine their content.

Those e-mails led to a new project, the book titled Dearest TINKEBELL. Not only does this book contain all the hatemail received by the artist; it also holds all sorts of information about its senders. Every e-mail is accompanied by photographs and information (‘profiles’) from the senders, found on various publicly accessible websites (such as FaceBook and LinkedIn). It allows the reader to find out what the sender of the e-mail lookes like, where they live, what their hobbies are, where they work … The result is a rather interesting experiment in anonymity, online privacy, shame, and voyeurism. However, as I’m sure you’ve guessed, there is also a very interesting legal dimension to it.

The publication of the book is presently causing some sort of a stir among (legal) scholars in the Netherlands, and perhaps reporting it will lead to some interesting comments on your website too. The book raises all sorts of interesting questions on privacy, copyright (both in the e-mails, which would probably be protected by copyright under the recent Endstra-Tapes case law of our highest court [see here and here], and on the publically available material (pictures, text) on websites), libel, the need for an exceptio artis, etc. If you’re interested, you can find more information in an English translation of an article that appeared in a newspaper last week, which describes the project and the contents of the book. It is found here".

The IPKat is horrified to think what is done to cats for the sake of art, even if they are fast coming to the end of their ninth and final lives. However, from the point of view of the publication of letters not intended for publication, he remembers fondly William Donaldson's The Henry Root Letters, in which a hilarious set of genuine celebrity responses to a set of well-aimed hoax letters from a wealthy wet-fish merchant became a popular read without seeming to draw any threats of legal action.  

Right: never trifle with a kitten ...

The same formula was adopted by Brian Bethell in The Defence Diaries of W. Morgan Petty, when he published genuine responses to the protagonist's hoax letters in support of the attempt to make his home at 3 Cherry Drive, Canterbury, a Nuclear-Free Zone (Merpel adds: how are the mighty fallen -- you can now purchase this work for just one penny from Amazon].  Nowadays he suspects people would sue, since (i) we live in litigious times, (ii) no-one except the IPKat and his readers has a sense of humour any more and (iii) there is no implied licence to publish a response to a hoax letter.   But let's hear from the readers: what do you have to say?

More than one way to kill a cat here

More than one way to skin a cat here

Return of the Max

The IPKat must have been in mid-winter hibernation to have missed this story in the Times of 27 December.

Max Moseley, Formula One boss and sometime frequenter of sado-masochistic 'happenings' has launched a privacy action in Germany, after having won an action that he brought in the UK. Moseley is said to be seeking €1.5 million (£1.4 million) from Bild and bild.de, €350,000 from the news agency dpa and also is seeking damages against Die Zeit in connection with the same footage of Moseley in a compromising situation with uniformed ladies, and subsequent newspaper reports.

The case is expected to be particularly controversial because of the sensitivity surrounding Nazi associations in Germany.

The IPKat is puzzled. Although this will be of great interest to comparative privacy lawyers, wouldn't it have been in Mr Moseley's interests to let the whole thing fade away, rather than airing his dirty laundry in court a second time?

Daily Mail editor lambasts Moseley judge, and Moseley responds

For once the IPKat finds himself in the rather strange position of agreeing with Max Moseley. Mr Moseley (who was exposed by the News of the World as enjoying the attentions of a number of German-speaking 'ladies of the night') has spoken out in the Guardian against Paul Dacre's comments regarding privacy. Mr Dacre, the editor of the Daily Mail, gave the opening speech at the Society of Editors' conference. The speech comments on the fallout after the News of the World lost a privacy action, brought by Mr Moseley this summer (reported by the IPKat here) after exposing Mr Moseley's night-time activities and posting a video of one of the events on its website. Mr Dacre accused the judge in that case, Mr Justice Eady, of introducing a privacy law by the backdoor. He began:

But there is one remaining threat to press freedom that I suspect may prove far more dangerous to our industry than all the issues I have just discussed.

'Put to one side the United Nations’ recent attack on Britain’s disgracefully repressive libel laws that have made London the libel capital of the world – something that should be a bitter source of shame for our judicial system.

Concentrate instead on how inexorably, and insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man.

I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.'

Then, after discussing Moseley's case, and another case:

'Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely “unconventional”.

...

But what is most worrying about Justice Eady’s decisions is that he is ruling that - when it comes to morality - the law in Britain is now effectively neutral, which is why I accuse him, in his judgments, of being “amoral”.

...

What the judge loftily calls the “new rights-based jurisprudence” of the Human Rights Act seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards.

But most worrying is that when it comes to suppressing media freedom, the good Justice Eady is seemingly ubiquitous....

[Dacre then lists the cases in which Mr Justice Eady has sat]

But surely the greatest scandal is that while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door.

English Common Law is the collective wisdom of many different judges over the ages. The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression. I personally would rather have never heard of Max Mosley and the squalid purgatory he inhabits. It is the others I care about: the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge.

If Gordon Brown wanted to force a privacy law, he would have to set out a bill, arguing his case in both Houses of Parliament, withstand public scrutiny and win a series of votes. Now, thanks to the wretched Human Rights Act, one Judge with a subjective and highly relativist moral sense can do the same with a stroke of his pen.

All this has huge implications for newspapers and, I would argue, for society. Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community. For hundreds of years, the press has played a role in that process. It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation. If their readers don’t agree with the defence of such values, they would not buy those papers in such huge numbers.

Put another way, if mass-circulation newspapers, which, of course, also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.

Now some revile a moralising media. Others, such as myself, believe it is the duty of the media to take an ethical stand. Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice .

The IPKat finds Dacre's speech problematic for a number reasons. To suggest that a judge has an agenda needs to be proven with more rigour than demonstrating that he has delivered a number of consistent judgments - if a judge is applying the law, one would hope for consistency. Who, out of interest, does Dacre suggest is granting Mr Justice Eady this 'virtual monopoly'? Mr Dacre also appears to have not quite grasped the concept of the separation of powers. Yes, judges are unelected, but that's the whole point. He calls the Human Rights Act 'wreteched'. That reduces the importance of an Act which enshrines (or at least adumbrates) fundamental values to a spat between editors of newspapers who want to break 'scandals' and those nasty conservative judges who are spoiling all the fun (and ruining the circulation figures). He accuses the law of being 'amoral', but surely the decision to put privacy and family life over free speech in some cases is a moral one, even if it's one he disagrees with. More fundamentally, judges applying the law, and perhaps particularly IP law, generally doesn't moralise (although there's clearly a moral judgment by Parliament in deciding what the law should be in the first place) or look to closely at the 'quality' of what they're protecting - a consequence of the fact that they're there to apply the law, not to make it up as they go along - make your mind up Mr Dacre; either you want judges to defer to the will of Parliament or you don't - you can't have it both ways. The full text of the speech is available here.

Goliath can't appeal against little David decision

According to the House of Lords' Minutes of Proceedings this week, the highest appellate court in the United Kingdom has refused Big Pictures (UK) Limited leave to appeal against the Court of Appeal's decision in its controversial dispute with little David Murray, better known as the son of Harry Potter author J K Rowling. Earlier this year the Court of Appeal (as noted by the IPKat here in "Now you can buy milk without being shot", allowing David's appeal) refused to strike out an action brought on behalf of the child, considering that it was at least arguable that David had a reasonable expectation of privacy and that the balance between Articles 8 and 10 of the European Convention on Human Rights should be struck in his favour. The trial on the merits of his claim has yet to take place.

"JUDGE IN PRIVACY DAMAGES ROMP WITH 4 BARRISTERS"

British tabloid newspaper publishing practices are in the news again, following the judgment in yesterday's highly-publicised ruling of Mr Justice Eady in Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB).

Right: in a desparate attempt to deflect press attention from his next orgy, Max Mosley and his friends resort to a cunning disguise

Max Mosley, President of the Fédération Internationale de l'Automobile (FIA) since 1993 and a trustee of its charitable arm, the FIA Foundation, objected to the publication of an article in the News of the World newspaper. This article, headed 'F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS', was billed as an exclusive and ran under the subheading "Son of Hitler-loving fascist in sex shame". The article in question concerned an event, described as a party by Mosley and as an orgy by the newspaper. The text was accompanied by images taken from clandestine video footage and a concealed camera at the event itself. A sequel, published the following month under the banner "EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS", was mainly a purported interview with one of the women who participated in the event, who had filmed it with a camera supplied by the newspaper and concealed in her brassiere.

Mosley alleged breach of his of privacy under Article 8 of the European Convention on Human Rights (ECHR), seeking exemplary damages. He argued that the content of the published material was inherently private in nature and that there had existed a pre-existing relationship of confidentiality between the participants. The public display of this private event was thus unlawful.

Eady J, awarding a new UK record sum of £60,000 damages, agreed. In his 236-paragraph judgment he said as follows:

* The clandestine recording of sexual activity on private property was a proper subject-matter for the engagement of Article 8 of the ECHR.

* The woman with the concealed camera had committed an "old fashioned breach of confidence" as well as a violation of Article 8 of the ECHR.

* Mosley had a reasonable expectation of privacy in relation to his sexual activities, albeit unconventional, carried on between consenting adults on private property.

* There was no evidence that the event was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes; nor indeed was it so. There was some bondage, beating and domination which seemed to be typical of sado-masochistic (S and M) behaviour -- but there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or indeed for the placing of the video extracts on the News of the World website .

* The mere fact that this behaviour was viewed by some people with distaste and moral disapproval gave no justification for the intrusion on Mosley's personal privacy in the light of modern rights-based jurisprudence.

* Exemplary damages were not available in a claim for infringement of privacy.

This decision has been criticised in many quarters as destroying the ability of the UK press to reveal the shady facets of publicly prominent figures, suggesting that revelations of the pecadillos of politicians might now go unannounced. The IPKat wonders whether this criticism is founded on the assumption that we might be kept in the dark as to significant information that would cause the electorate to lose confidence in its leaders. If so, it seems that the countervailing public interest is also protected under the ECHR and we have -- at least in theory -- nothing to worry about. In this case, nothing turns on whether Max Mosley attends orgies, keeps sheep in his living room or eats prunes for breakfast and the decision looks right. We have all become habituated, indeed well-nigh addicted, to a constant flow of personal information concerning so-called celebrities; perhaps we should ask ourselves why this is so.

Merpel wants to know this: presumably each revelation by the News of the World brought attention and an increase in advertising revenue and web-traffic. Even if it has to fork out £60,000 plus an estimated £830,000 in costs, it must surely have profited pretty healthily from this escapade. Can anyone confirm this?

The IPKat's favourite S & M practice here
The IPKat's favourite S & M publisher here

Mind your Ps and Qs -- and watch your Rs

English cases often begin with the formula "R v ...", where "R" is an abbreviation for Rex or Regina (Latin for king/queen) -- but he's found a case brought by P and Q as well as R. It's P, Q and R v Quigley [2008] EWHC 1051 (QB), a decision of Mr Justice Eady from 16 May 2008. You can read it here in full on BAILII. In brief, the anonymised applicants (P, Q and R) applied for summary judgment on their claim for a permanent injunction to stop Quigley publishing "purported information" concerning the sexual activities of P and Q (Q being P's husband and also a former director and chief executive of a company, R).

Right: taking pains to preserve their anonymity, P and Q would adopt disguises whenever they met in public

There was obviously a bit of bad feeling between the parties since Quigley used to work for R but, after his resignation, criminal proceedings had been commenced against him following allegations that he had been siphoning off R's business opportunities -- proceedings which were abandoned on account of Quigley's mental health. Quigley then brought an action for malicious prosecution against R, which was settled. Subsequently Quigley threatened to publish a novella on the internet, starring P and Q, thinly disguised, who were to be depicted as participants in various unsavoury and fictitious sexual activities. Having secured interim injunctive relief, P and Q sought to make the ban permanent on the basis that the publication of Quigley's novella would infringe their rights to privacy under the European Convention on Human Rights, Article 8.

Eady J granted the permanent injunction. In his view

* the balancing act between P and Q's rights of privacy and Quigley's right to freedom of expression under Article 10 of the same Convention was clearly in favour of restricting publication because there was no conceivable public interest in the publicising of scurrilous allegations against P and Q.

* although the threat related to imaginary activities, the publication would be likely to cause distress and embarrassment and would constitute an unacceptable intrusion into a personal and intimate area of their lives -- and very little value could be given to Quigley's freedom to do that.

* any infringement of Quigley's rights was thus necessary and proportionate, having regard to the protection gained by P and Q.

* R's application to restrain publication would be adjourned for full trial because its claim was based on contract, not breach of privacy.

The IPKat, though sympathetic with the claimants, is a little perturbed by this result. If (i) Quigley's story on the internet was true and (ii) P and Q were identified as the persons in it and (iii) their sexual activities were of a private nature, the case for injunctive relief would have been unanswerable. But here it seems to be accepted by both sides that this was a novella, which suggests a work of fiction, and the identities of P and Q were disguised: if the public were not already familiar with the sexual practices of P and Q, why should they assume that the information in the movella was true and referred to P and Q rather than just being the fruit of the apparently disturbed mind of the defendant? Merpel adds, wasn't there an ECHR case involving an artist who had depicted real people in fictional sexual positions, with the court dividing as to whether this was an infringement of Art. 8 or not? Can anyone remember?

Mind your Ps and Qs here and here
Alphabet soup here
Publish your own novella here

Free speech trumps privacy, but only just, in Mosley case

The IPKat has come across a privacy case in which Max Mosley attempted to enjoin the News of the World from showing video footage of his allegedly Nazi-themed orgy with five prostitutes. The footage was posted on the News of the World’s website at the end of March. It was then voluntarily taken down on 31 March, by which time other websites had copied and posted the footage. On 3 April the News of the World gave notice that it intended to repost the footage. Mosley applied to the court for an injunction to stop this.

According to Eady J, Mosley’s Art.8 right to privacy was in conflict with the News of the World’s Art.10 right to freedom of expression. In balancing the two, the court has to take the following into account:

i) No Convention right has, as such, precedence over another;

ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an "intense focus" is necessary upon the comparative importance of the specific rights being claimed in the individual case;

iii) The Court must take into account the justification for interfering with or restricting each right;

iv) So too, the proportionality test must be applied to each

The information disclosed intrustive and demeaning to Mosley. However, the court had to consider two factors which could limit his right to privacy:

1. There was no public interest justification for revealing the edited video footage. The public was already aware of Mr Mosley’s proclivities, and the pictures embodied in the video footage were only of interest because they were “mildly salacious and provide an opportunity to have a snigger at the expense of the participants”.

Although there was a public interest in protecting the public from being misled by statements made by a claimant (in this case, the possibility that Mr Mosley was not telling the truth in denying that the S&M session has a Nazi theme), the News of the World could put the record straight without recourse to the video footage. In particular, the footage in question did not convincingly show that Mosley was lying.

2. However, there was no point in barring the News of the World from showing the material since the material was now widely available on the internet and anyone who wished to view the footage could easily do so. Either Mosley had lost his reasonable expectation of privacy because the information was so widely available, or the information has entered the public domain. In either case, the court had to avoid adopting the role of King Canute and making “vain gestures”.

The judge summarised:

I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.

The IPKat is a tad puzzled by Eady J’s approach. Although he states that no convention right takes precedence over another, he seems to proceed on the assumption that Mosley has a prima facie right to privacy which would need to be rebutted by free speech concerns. In other words, free speech seems to be being treated almost as a defence, rather than as a right of equal importance to privacy.

Peggy Sue Makes Mrs Holly Blue

More than just a song title, Peggy Sue is about to launch her memoirs, which apparently include certain "unspecified claims" about her relationship with Buddy Holly (at left). Peggy Sue, of the famous 1950s song, was married to Jerry Allison, drummer with Buddy Holly's band, The Crickets. Apparently the two couples were once so close, they shared a double honeymoon in 1958 - apparently also one of the more controversial entries in the memoirs. (At right: the two couples at Buddy's and Maria's wedding in 1958).

Mrs Maria Elena Holly has said through her solicitors that the book is unauthorised and could damage Holly's name, her reputation and the reputation of her company, the aptly titled "Holly Properties."

Not to be confused with the Holly Properties of Ocean City, NJ, through which you can purchase this delightful timber beach cottage

While Peggy Sue is lauding freedom of speech, Mrs Holly is proclaiming freedom of property. In a cease-and-desist letter, her lawyers state that Mrs Holly owns the rights to her husband's name, image, trade marks and other intellectual properties. Without consent to use Holly's name and image (which apparently will appear on the cover), the book is considered to be unauthorised (a branding which in itself can sometimes facilitate the success of a book rather than limit its circulation).

The legal team has asked for the promotion and sale of the book to end, the subtitle to be removed, and all book orders to be cancelled with refunds. Apparently they have also asked for an account of profits: "Confusion and tarnishment of Buddy Holly's name and Ms Holly's reputation are likely to result from this unauthorised book."

Importantly for her claims, Mrs Holly has been quoted as rejecting the stories as fabricated: "I don't understand why people do that, especially when she knows that people know the truth."

The IPKat wonders how far such protection can actually limit the publication of true memoirs. But Merpel says, much more to the point, "No amount of trade mark protection will help restore order after the lunacy of a double honeymoon."

Ah, if you knew Peggy Sue ...