Mosley v News Group Newspapers Ltd (No 3)
Reference:  EWHC 1777 (QB);  EMLR 20; The Times, 30 July 2008
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 24 Jul 2008
Summary: Privacy - Reasonable expectation of privacy - Public interest -Footage of sexual activities - Public figure – Allegations of Nazi role-play
Download: Download this judgment
David Sherborne (Claimant)
Instructing Solicitors: Steeles Law for M; Farrer & Co for NGN
M, the President of the Federation Internationale de l’Automobile, the governing body of motor sport worldwide, was filmed engaging in sado-masochistic activities with five dominatrices in a private flat. An edited version of the footage was made available on NGN’s website in connection with a News of the World article entitled ‘F1 boss has sick Nazi orgy with 5 hookers’. M accepted that the events shown occurred but claimed that their disclosure infringed his right to privacy. He also denied any Nazi element. An interim injunction was denied on the basis that the footage was by that stage widely accessible. M brought proceedings for invasion of privacy.
(1) Whether the sexual activity had or was intended to have a Nazi theme, the basis upon which NGN sought to rely that it was in the public interest to disclose that a publicly-elected FIA official engaged in such conduct;
(2)The availability of exemplary damages in a privacy claim
Finding for M and awarding him £60,000:
(1)There was no evidence that the sexual role play was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes, nor was it in fact. Though the sexual activities were unconventional there was no public interest or other justification for the clandestine recording, for the publication of the footage and images or for the placing of the video extracts on the NOTW website.
(2) There was no authority to support extending the application of exemplary damages into this field or to include an additional element specifically directed towards deterrence. Further, the claim for exemplary damages would fail both the tests of necessity and proportionality and on the facts.
It remains to be seen whether the record figure of damages for invasion of privacy awarded in this case will make newspapers and magazines take the threat of privacy actions more seriously in future.