The King Canute Defence To Breaching Rights of Privacy

Article 8 of the European Convention on Human Rights protects a person's right to privacy. There are exceptions. For a more detailed explanation try this site.

None of the exceptions applies in the case of Max Mosley and his interaction with prostitutes. Mr Justice Eady accepted this today:

"A relevant consideration here is whether there is a public interest in revealing the material which is powerful enough to override Mr Mosley's prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs. I have little difficulty in answering that question in the negative. The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley's sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent's website."

A clear case then that The News of the World breached Mr Mosley's Article 8 rights and had no public interest defence. They should therefore be restrained from further publication of the video. Well, no, actually.

Paragraphs 22-24 of Eady J's judgment are as follows:

"When it comes to privacy, however, Mr Price emphasises that, when balancing his client's Article 8 rights against the Respondent's Article 10 rights, the visual display of the edited footage serves no legitimate purpose and that its grossly intrusive nature is unnecessary and disproportionate.

I was reminded of a passage in the speech of Lord Hoffmann in Campbell v. MGN Limited [2004] 2 AC 457, 475 at [60], where he referred to a hypothetical case in which there would be a public interest in the disclosure of the existence of a sexual relationship (e.g. because of corrupt favours), but where the addition of salacious details or intimate photographs would be disproportionate to any legitimate purpose and unacceptable. He observed that these would be likely to be intrusive and demeaning – even if accompanying a legitimate disclosure. Mr Price submitted that this would also be true in the present case.

I was also invited to have in mind similar observations made by Waller LJ in D v. L [2004] EMLR 1 at [23]:

"A court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information which the photographer provides or even if the information revealed by the photograph is in the public domain. It is no answer to the claim to restrain the publication of an improperly obtained photograph that the information portrayed by the photograph is already available in the public domain.""

He also said at paragraph 32:

"I am quite satisfied that Mr Mosley, even though he may have been misunderstood by some commentators, has accepted that he took part in the "S and M" session with the prostitutes. What he is denying is the link to Nazism. I do not consider that the edited footage shows, convincingly, that his denial is false. But, even if it is capable of being so construed, there is nothing to prevent the News of the World reasserting, with whatever prominence it thinks appropriate, that there was Nazi role-play. Accordingly, if there is any case for saying that Mr Mosley's denials have, in any way, misled the public, and that the record should therefore be put straight for that reason, the objective can be achieved effectively without displaying the edited footage of bottoms being spanked."

It seems all to be going Mr Mosley's way so far. He may therefore have been surprised by the closely following paragraph 34:

"As Mr Millar has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. 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. It is inappropriate for the Court to make vain gestures."

And he may have been even more surprised by the conclusion:

"In the circumstances now prevailing, as disclosed in the evidence before me, I have come to the conclusion that the material is so widely accessible that an order in the terms sought would make very little practical difference. 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. 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."

I have read the judgment twice and it still seems to mean that newspapers can get away with the Canute defence if they act quickly, generate enough interest and are copied widely over the internet. They are then (a) immune from attack, (b) can then get away with republication of material originally published in breach of Article 8 and (c) profit from that republication.

THE CANUTE DEFENCE: A GUIDE FOR NEWSPAPERS:

(1) Obtain information in breach of a person's human rights.

(2) Do so illegally if that is to your taste.

(3) Put it up on your website until you receive a letter of protest from that person's solicitors.

(4) Immediately take it down.

(5) Tell the court that so many copies were made whilst it was (illegally) on your site that there is no point in restraining you from putting it back up.

(6) You then say: "Yah! Booh! Sucks!" to the complainant.

QUIZ QUESTIONS:

(1) What principles were applied here (if any)?

(2) Even if the material is now in the public domain, should The News of the World be allowed to make further profit from admittedly unlawful behaviour - even if other people will do so?

(3) Does it make any difference to your answers to the above two questions that you are or may be personally disgusted by Max Mosley's behaviour?

(4) Should it?

(5) Are any of the above "leading questions" and, if so, which?

IMPORTANT NOTE:

I hold no brief for Max Mosley and I have no prurient interest in his personal life. I have not posted before concerning this and have not linked to the "salacious" material, although ordinarily I would not hesitate to do so. This post relates to an important decision on Human Rights and issues of principle. I hope Mr Mosley appeals. Not for his sake but because we need something better on this subject than, I am afraid, Eady J's judgment provides.?