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.
In Douglas v. Hello! Limited [2001] QB 867 at [137], Sedley LJ indicated that in
situations of this kind “the outcome … is determined principally by considerations of
proportionality”.
29.
Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict
with those of the Respondent company under Article 10. One question which has to
be answered is whether, in respect of the information contained in the edited footage,
Mr Mosley any longer has a reasonable expectation of privacy, having regard to
everything which has happened since the original publication.
30.
It is also appropriate to ask whether any of what Lord Goff described, in AttorneyGeneral v. Guardian Newspapers Limited (No 2) [1990] 1 AC 109, at 282C-F, as the
“limiting factors” come into play. 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.
31.
I have well in mind, naturally, that one aspect of the public interest is the need to
protect the public from being misled by a statement made by or on behalf of the
relevant claimant. That is recognised expressly in the terms of the Code of Practice
promulgated by the Press Complaints Commission (a factor to which it is appropriate
to have regard, on an application of this kind, in the light of s.12(4) of the 1998 Act):
see also e.g. the observations in Campbell v. MGN Limited (cited above) at [24], [57],
[80]-[83], [129] and [163]. This is of some relevance here because one argument
advanced by Mr Millar is that, since 31 March, when the material was voluntarily
taken off the website, Mr Mosley has gone on record as denying the allegations; to
that extent, he submits that his client should be entitled to refute his statements and
vindicate the accuracy of its original account.
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.