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.
33.
The other “limiting factor” to be considered is whether the information contained in
the edited footage has lost its privacy to the extent that there is nothing left for the law
to protect. I have found this more difficult. I am prepared to accept that the material
has been seen by thousands of people around the world and that it continues to be
available. Mr Millar asks rhetorically, therefore, what can be achieved by an
injunction in these circumstances? The Court must always be conscious of the
practical realities and limitations as to what can be achieved. I have in mind, of
course, what was said in Douglas v. Hello! at [105] (cited above). Nevertheless, a
point may be reached where the information sought to be restricted, by an order of the
Court, is so widely and generally accessible “in the public domain” that such an
injunction would make no practical difference.
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.
35.
There is a closely related argument which needs also to be considered. It was
addressed in Attorney-General v. Times Newspapers Ltd [2001] 1 WLR 885, 895-6, at
[29]-[35]. The Court will sometimes recognise that it is inappropriate to restrain one
media organisation from publishing material, for the vindication of the right of
another person or pursuant to an obligation owed to that person, at a time when it is
open to other media outlets, including competitors, to publish the selfsame
information. That was an argument which carried weight in Attorney-General v.
Times Newspapers. It is, however, a less convincing argument where the information
was put into the public domain in the first place by the respondent sought to be
restrained. In such circumstances, the argument would have about it what Mr Price
calls a “bootstraps” quality; that is to say, because the respondent would be seeking
to take advantage of its own “wrong” in having made the (hypothetically tortious)
publication in the first place.
36.
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