Reference: Application no. 48009/08;  EMLR 1
Court: European Court of Human Rights
Judge: Garlicki, Bratza, Mijovic, Bjorgvinsson, Hirvela, Bianku, Vucinic
Date of judgment: 10 May 2011
Summary: Article 8, ECHR - Right to respect for private life - Victim status - Domestic remedies - Positive obligations - Availability of injunctive relief - Margin of appreciation - No violation
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David Sherborne (Applicant)
Instructing Solicitors: Treasury Solicitors for the UK; Collyer Bristow for Mr Mosley
In March 2008 the News of the World published an article about the Applicant engaging in sado-masochistic activities with five dominatrices in a private flat. Several pages of the newspaper were devoted to the story which included still photographs taken from video footage secretly recorded by one of the participants in the activities. An edited extract of the video and further still pictures were published on the newspaper’s website and elsewhere on the internet.
The Applicant was refused an interim injunction because the material was already in the public domain but in the subsequent proceedings for invasion of privacy and breach of confidence he was awared £60,000 in damages. The court found that there were no Nazi connotations to the images and there was therefore no public interest in the disclosure of the Applicant’s sexual activities. It further ruled that exemplary damages were not available for an invasion of privacy.
The Applicant applied to the European Court, alleging that the UK had violated its positive obligations under Article 8 of the Convention to ensure respect for his private life, in particular by failing to require those intending to disclose private information to first notify the subject of that information.
(1) Whether the Applicant could be regarded as a victim of a violation of the Convention given the award of damages and/or the availability of alternative remedies;
(2) Whether the United Kingdom had a positive obligation under Article 8 of the Convention to introduce a mandatory notification requirement on the newspaper which would have afforded the Applicant the opportunity to apply for an injunction prior to publication.
Declaring the application admissible but finding no violation of Article 8:
(1) The Applicant could be regarded as a victim given that no amount of damages awarded after publication could meet his complaint that no legal requirement existed in the UK obliging the media to give advance warning to a person of a publication which interfered with their private life. The Applicant’s failure to appeal the ruling on exemplary damages, to claim an account of profits or to bring proceedings under the Data Protection Act 1998 did not amount to a failure to exhaust domestic remedies.
(2) It was implicitly accepted in the Court’s previous case-law that damages for an invasion of privacy could be an adequate remedy. Notwithstanding the merits of the Applicant’s case, a pre-notification requirement would inevitably affect political reporting and serious journalism which called for the most careful scrutiny. The variety of remedies available in the United Kingdom, which included the possibility of injunctive relief where an individual was aware of an intended publication, was compatible with international standards including Parliamentary Assembly Resolutions on privacy and the media. The lack of clarity in how a pre-notification requirement would work in practice, given the need for there to be a public interest exception, would cause a chilling effect which might put such a requirement in breach of Article 10, especially if it were to be enforced by punitive or criminal sanctions. Given the wide margin of appreciation afforded to States in balancing the requirements of private life and freedom of expression, therefore, the Court found no violation of Article 8.
The analysis of the legal system pertaining to privacy in the United Kingdom by the European Court in this case, some ten years after the law began to develop under the Human Rights Act 1998, is of a system that is working effectively to balance the respective rights and interests under Articles 8 and 10. Where there has been a breach of an individual’s private life, remedies are available which may include, but do not have to include, the availability of injunctive relief, an award of damages and non-legal remedies offered by the media regulators. A mandatory requirement on the media to notify the subject of an intended article prior to publication (even though this is a common journalistic practice) would, the Court found, be a step too far. The Court was no doubt influenced by the fact that the issue of privacy injunctions is kept under periodic review in the United Kingdom and the absence of any pre-notification requirement in any other Member State of the Council of Europe, as well as the practical problems of introducing such a requirement. The over-riding message of this judgment, therefore, is to keep calm and carry on.