22 October 2009

FOURTH SECTION

Application no. 48009/08 by Max Rufus MOSLEY against the United Kingdom lodged on 29 September 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Max Rufus Mosley, is a British national who was born in 1940 and lives in Monaco . He is represented before the Court by Steeles (Law) LLP , a firm of solicitors based in London .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows .

On 30 March 2008, the News of the World , a Sunday newspaper owned by News Group Newspapers Limited , published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities. An edited extract of the highly intrusive video as well as still images were also published on the newspaper ’ s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper.

Later that same day, the applicant ’ s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, on 31 March 2008 , the edited footage was voluntarily removed from the website and an undertaking given that it would not be shown again without 24 hours notice. Such notice was given by letter dated 3 April 2008 and faxed at 1.19 p . m . that day.

The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies.

On 4 April 2008, the applicant brought legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage.

On 6 April 2008, a second series of articles on the applicant ’ s sexual activities was published in the News of the World .

On 9 April 2008, Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet.

In assessing the approach to be taken by the court to the granting of an interim injunction, he noted (at paragraph 28) that:

“ The following principles need to be borne in mind in any case where it is sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where they come into conflict with those of other persons, and in particular the rights of the media to freedom of expression and, correspondingly, the right of the public to be informed about mat t ers of public interest:

i) No Convention right has, as such, precedence over another;

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. ”

He continued (at paragraph 29) that:

“ 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. ”

Eady J (at paragraph 30) assessed the public interest in publication of the images as follows:

“ ... 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. ”

However, as to the extent of the applicant ’ s reasonable expectation of privacy, Eady J noted (at paragraphs 33 to 34) that:

“ 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 [for News Group Newspapers Limited ] asks rhetorically, therefore, what can be achieved by an injunction in these circumstances? The Court must always be conscious of the practical realities and limitati ons as to what can be achieved ... 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.

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 .”

He concluded (at paragraph 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 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. ”

The edited video footage was restored to the website shortly afterwards.

In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World . As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place:

“Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not?

A: That was a major concern, yes.

Q: You were worried that the court might grant an injunction.

A: It was a consideration, yes.

...

Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified?

A: It is a risk all newspapers are faced with these days.

Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there?

A: No. It happens a lot.

Q: But you were not prepared to risk that on this occasion?

A: On this occasion.”

On 24 July 2008, judgment was handed down in the privacy proceedings.

Regarding to the allegations of a Nazi th eme, Eady J noted (at paragraph 146):

“ Once the material was obtained, it was not properly checked for Nazi content and the German was not even translated. Those concerned were simply content to rely on general impression (looking at it ‘ in the round ’ ). That is hardly satisfactory having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations – especially that of mocking the treatment given to concentration camp inmates. ”

He concluded (at paragraphs 169 to 170):

“I am prepared to accept that Mr Thurlbeck [the journalist responsible for the story] and Mr Myler [the editor], on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe. Indeed, they needed to believe this in order to forge the somewhat tenuous link between the Claimant and his father ’ s notorious activities more than half a century ago and, secondly, to construct an arguable public interest defence. This presumably explains why it was still being put in the forefront of the 6 April editorial headed ‘ SHOCK WAVES: our story ’ :

‘ OUR sensational exposé of Max Mosley ’ s Nazi orgy made global headlines and sent shockwaves through the world of motor racing ... ‘

The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reach ed ‘ in the round ’ , as Mr Thurlbeck put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘ mocking ’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘ responsible journalism ’ . Returning to the terminology used by Lord Bingham in Jameel (cited above), the judgment was made in a manner that could be characterised, at least, as ‘ casual ’ and ‘ cavalier ’ .”

As to the newspaper ’ s assessment, prior to publication, of the lawfulness of publishing the articles, Eady J said (at paragraphs 207 to 209):

“In the context of privacy, it is obvious that there is a good deal of scope for differing assessments to be made, in advance of publication, on such issues as whether there is a reasonable expectation of privacy or a genuine public interest such as to justify intrusion. It is unlikely to be as clear cut as whether (say) words are defamatory or untrue. Those are relatively clear concepts but ‘ public interest ’ is more elusive. I cannot know to what extent Mr Thurlbeck, Mr Myler or anyone else involved in the decision to publish knew or thought about the law. I am not entitled to know. There is no doubt that they had on hand throughout advice from their experienced and much respected in-house lawyer, Mr Tom Crone, but what passed between them is privileged and I cannot speculate. Nor are they in any way to be criticised for not waiving legal professional privilege, as [counsel for the applicant] seemed to imply.

I am not in a position to accept the submission that any of the relevant individuals must have known at the time that the publication would be unlawful (in the sense that no public interest defence could succeed). As Mr Myler commented in the witness box, ‘ That is what we are here to find out ’ . Nor can I conclude that one or other of them was genuinely indifferent to whether there was a public interest defence (a state of mind that could be equated to recklessness). They may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, but that is not the same as genuine indifference to the lawfulness of this conduct.

It is also clear that one of the main reasons for keeping the story ‘ under wraps ’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.”

Mr Justice Eady concluded that the newspaper articles and images constituted a breach of the applicant ’ s right to privacy. He found that there were no Nazi connotations in the applicant ’ s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images.

On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. As to the role of deterrence in the setting of any compensation award, he said (at paragraphs 227 to 229):

“An issue to which attention was directed in counsel ’ s submissions was that of deterrence. Passing reference has been made in the authorities from time to time to this concept, but it seems at least questionable whether deterrence should have a distinct (as opposed to a merely incidental) role to play in the award of compensatory damages. It is a notion more naturally associated with punishment. It often comes into the court ’ s assessment of an appropriate punishment for prevalent criminal offences. There is also the anomaly to be considered, already mentioned in the context of exemplary damages; namely, that if damages are paid to an individual for the purpose of deterring the defendant (or others) it would naturally be seen as an undeserved windfall.

Furthermore, if deterrence is to have any prospect of success it would be necessary to take into account (as with exemplary damages) the means of the relevant defendant (often a newspaper group). Any award against the present Defendant would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function. There is also a concomitant danger in including a large element of deterrence by way of ‘ chilling effect ’ .

It would in my judgment not be consistent with the approach of the Court of Appeal in John v MGN Ltd to impose, solely for the sake of deterrence, a large award of damages unrelated to any recognised scale or tariff. For this purpose, as I have said, I need to have well in mind the tariff applied over the last 10 years so far as defamation awards are concerned. It is true that the approach was questioned in Gleaner Company Ltd v Abrahams [2004] 1 AC 628, but I must nevertheless do my best to avoid any appearance of arbitrariness and keep the award in proportion.”

Eady J recognised that the sum awarded would not constitute adequate redress, noting (at paragraphs 230 to 231):

“... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone ’ s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on.

Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.”

The applicant was awarded GBP 60,000 in damages. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined.

B. Relevant domestic law and practice

1. The Press Complaints Commission Code of Practice

The Press Complaints Commission has adopted a code of conduct which is regularly reviewed and amended as required. Clause 3 deals with privacy and provides as follows:

“3. *Privacy

i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual ’ s private life without consent.

ii) It is unacceptable to photograph individuals in a private place without their consent.

Note - Private places are public or private property where there is a reasonable expectation of privacy.”

Clause 10 of the Code sets out provisions on clandestine recordings:

“10 *Clandestine devices and subterfuge

i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.

ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.”

The “public interest” is explained in the Code as follows:

“ There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

1. The public interest includes, but is not confined to:

i) Detecting or exposing crime or serious impropriety.

ii) Protecting public health and safety.

iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2. There is a public interest in freedom of expression itself.

3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.

4. The PCC will consider the extent to which material is already in the public domain, or will become so.

...”

2. Remedies for publication of private information

Under English law, a number of remedies are available in cases of misuse of private information. An injunction can be sought to restrain publication of the private material. Damages are also available to compensate for the injury caused by any intrusive publication, including aggravated damages where additional features of the intrusion or the defendant ’ s post-publication conduct makes the original injury worse. An alternative to damages is an account of the profits made by the defendant. Finally, the court can order delivery-up of the offending material.

3. Interim injunctions

The previous position as regards interim injunctions under English law was set out in the case of American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396). In particular, that test required an applicant seeking an interim injunction to show that he had a “seriously arguable case” to be tried. Once this had been shown, it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages. If there were doubts as to the adequacy of a remedy in damages, the preservation of the status quo often prevailed, with the result that an interim injunction would be granted.

The position was subsequently amended with the entry into force of the Human Rights Act 1998 . Section 12 of the Act provides:

“ (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a) the extent to which—

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code. ”

The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44 . Lord Nicholls of Birkenhead observed (at paragraph 15) that:

“ When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘ serious question to be tried ’ or a ‘ real prospect ’ of success at the trial. ”

He concluded (at paragraph 22) that:

“ Section 12(3) makes the likelihood of success at the trial an essential element in the court ’ s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant ’ s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘ sufficiently favourable ’ , the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ( ‘ more likely than not ’ ) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal. ”

Subsequently, in Douglas & Ors v Hello! Ltd & Ors ([2005] EWCA Civ 595) , the Court of Appeal noted (at paragraph 258) that:

“ Of course, as recently emphasised by the House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998. ”

C. Relevant international instruments

On 23 January 1970, the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a d eclaration on mass communication media and human rights . As regards the duty of the press to act responsibly, the declaration contains the following provisions:

“ B. Measures to secure responsibility of the press and other mass media

It is the duty of the press and other mass media to discharge their functions with a sense of responsibility towards the community and towards the individual citizens. For this purpose, it is desirable to institute (where not already done):

(a) professional training for journalists under the responsibility of editors and journalists ;

(b) a professional code of ethics for journalists ; this should cover inter alia such matters as accurate and well balanced reporting, rectification of inaccurate information, clear distinction between reported information and comments, avoidance of calumny, respect for privacy, respect for the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights ;

(c) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self-control by the press itself. ”

The declaration also contains provisions regarding respect for privacy, which provide as follows:

“ C. Measures to protect the individual against interference with his right to privacy

1. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter.

2. The right to privacy consists essentially in the right to live one ’ s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications, protection from disclosure of information given or received by the individual confidentially. Those who, by their own actions, have encouraged indiscreet revelations about which they complain later on, cannot avail themselves of the right to privacy.

3. A particular problem arises as regards the privacy of persons in public life. The phrase ‘ where public life begins, private life ends ’ is inadequate to cover this situation. The private lives of public figures are entitled to protection, save where they may have an impact upon public events. The fact that an individual figures in the news does not deprive him of a right to a private life.

4. Another particular problem arises from attempts to obtain information by modern technical devices (wire-tapping, hidden microphones, the use of computers etc.), which infringe the right to privacy. Further consideration of this problem is required.

...

6. In order to counter these dangers, national law should provide a right of action enforceable at law against persons responsible for such infringements of the right to privacy.

7. The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection. ”

On 26 June 1998, the Parliamentary Assembly adopted a further resolution, Resolution 1165 , on the right to privacy, focusing on public figures. The Resolution noted as follows:

“6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people ’ s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy. ...

8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures.

9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression.

11. The Assembly reaffirms the importance of every person ’ s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.

12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.

...

14. The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines:

i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;

ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;

iii. when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned;

iv. economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy;

v. following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited;

vi. a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘ visual or auditory enhancement devices ’ to capture recordings that they otherwise could not have captured without trespassing;

vii. provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;

viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published.

...

16. The Assembly also calls upon the governments of the member states to:

...

iv. facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims ’ rights are better protected.”

COMPLAINTS

The applicant complains that the United Kingdom has violated its positive obligations under Article 8 of the Co nvention by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of the material .

He further argues under Article 13 that there was no effective domestic remedy open to him. Although the court found a serious breach of his right to respect for privacy and he was awarded damages, this award was not able to restore his privacy to him. He contended that only the possibility to seek an interim injunction prior to publication could constitute an effective remedy in his case.

QUESTIONS TO THE PARTIES

1. Having regard to the award of GBP 60,000, can the applicant still claim to be a victim in respect of his Article 8 complaint?

2 . Has there been a failure to protect the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention? In particular:

(a) Did the Government have a positive obligation to protect the applicant ’ s privacy by providing for a legal duty (a “notification requirement”) on the News of the World to warn him in advance of publication in order to allow him to seek an interim injunction?

(b) Would such a positive obligation and corresponding duty on newspapers and other media strike the correct balance between the interests protected under Article 8 and freedom of expression as guaranteed by Article 10 of the Convention?

3 . Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?