Information Note on the Court’s case-law

October 2022

MGN Limited v. the United Kingdom (dec.) - 72497/17

Decision 20.9.2022 [Section IV]

Article 10

Article 10-1

Freedom of expression

Newspaper publisher’s liability to pay success fees and insurance premiums within broad margin of appreciation given egregious and unlawful journalistic practices and gravity of privacy intrusion: inadmissible

Facts – The applicant, the publisher of three national newspapers, was found liable in proceedings for breach of privacy brought against it by a group of claimants (mainly celebrities, television personalities and footballers). In the course of those proceedings, the applicant conceded that its journalists had wrongfully listened to private or confidential information left for or by the claimants by accessing the voicemail on their mobile phones, wrongfully obtained private information via private investigators, and published stories based on that information.

In parallel proceedings brought by the claimants, in light of the Court’s judgment in MGN Limited v. the United Kingdom and, apparently in an attempt to pre-empt the decision in the costs assessment, it was held that, the claimants, if successful, could recover the success fees under their conditional fee arrangement (a “CFA”) and the after the event (“ATE”) insurance premiums (underwriting the claimants’ liability to pay the defendant’s costs).

The applicant complained under Article 10 about its liability to pay the success fees, which exceeded GBP 600,000 in the settled cases and 1.4 million in the ones that went to trial, and the ATE premiums, which exceeded GBP 200,000 and GBP 632,000 respectively.

Law – Article 10: In MGN Limited the applicant’s core complaint had concerned the recoverability against the applicant of the success fees agreed between the claimant and her legal representatives. The Court found the requirement that the applicant pay success fees to the claimant to be disproportionate having regard to the legitimate aims sought to be achieved. However, its analysis of the proportionality of the scheme was carried out largely in the abstract – it examined whether success fees recoverable against unsuccessful defendants were “necessary in a democratic society” to achieve the legitimate aim pursued –, and it only referred to the facts of the case before it after it had reached the conclusion that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests.

Although the Court’s conclusions in MGN Limited could not be confined to the specific facts of that case, it did not follow that the recoverability of success fees against media defendants would inevitably constitute a violation of Article 10. In that judgment the Court had made it clear that this was an area where the State’s margin of appreciation was very wide indeed; not only was it tasked with striking a fair balance between the media defendant’s freedom of expression and the claimant’s right of access to court, but it was also implementing a social and economic policy and in such a case the Court would normally respect the legislature’s judgment as to what was “in the public interest” unless that judgment was manifestly without reasonable foundation. Instrumental to the Court’s conclusion that the recoverability of success fees exceeded the State’s broad margin of appreciation was the fact that most careful scrutiny was called for when measures taken by a national authority were capable of discouraging the participation of the press in debates over matters of legitimate public concern.

Taking into consideration its case-law concerning responsible journalism, the Court noted that the proceedings against the applicant which had given rise to the present complaint related to activities of a wholly different order. The applicant had accepted that MGN journalists had regularly, engaged in unlawful practices (for example, hacking mobile phones) to obtain inherently private information and then published stories in its newspapers which they would not otherwise have been able to publish. In addition, the private information had been obtained by the private investigators possibly by techniques including “blagging” (that is, by deception, including by wrongfully claiming to be the person entitled to it or otherwise convincing the holder to part with it by some form of pretence).

The applicant’s journalists had known that their activities had been wrongful. Moreover, the impact on the claimants had been profound. While their private lives might have been of interest to the public, the revelation of their private lives would not normally be in the public interest. As the Supreme Court noted, this had not been a case where the applicant or its agents could have entertained any hope, let alone any expectation, that the end would have justified the means by yielding information which it would be in the public interest to reveal. Consequently, the applicant’s activities, despite constituting an egregious and unlawful interference with the privacy rights of the claimants, had not even arguably concerned its participation in debates over matters of legitimate public concern. As such, the finding in MGN Limited that the recoverability of success fees had exceeded the broad margin of appreciation accorded to the State could not automatically be applied in the present case. In this connection the Court agreed with the conclusions of the Supreme Court: it must be slow to find that a case involves newsgathering whose nature was so extreme as to lie outside the general rule established in MGN Limited (namely, that where a defendant was a newspaper or broadcaster, the recoverability of the success fee would normally infringe its Article 10 rights). Yet, in the present case, bearing in mind the persistence, pervasiveness and flagrancy of the unlawful hacking and blagging, and the lack of any public significance of the information which it would be expected to and did in fact reveal, this was not a case where the applicant could properly invoke that rule.

The recoverability of the success fees had interfered with the applicant’s rights under Article 10. For the reasons given by the Court in MGN Limited , the interference had clearly been in accordance with the law, in pursuit of a legitimate aim, and, with regard to proportionality, the CFA scheme, insofar as it provided for the recoverability of success fees, had been undoubtedly flawed. However, as the applicant had primarily relied on the rule established in MGN Limited , rather than on the specific facts of the case, the extent to which those flaws were borne out in the domestic proceedings was unknown, particularly, whether the claimants would have been in a position to fund the litigation and thus to have access to court without a CFA. Nonetheless, in view of the fact that the applicant’s activities had been so far removed from the concept of responsible journalism, and the published articles had not come close to imparting information or ideas on matters of the public interest, its Article 10 interests could not weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. On the other hand, in view of the gravity of the intrusion into the claimants’ private lives, commensurately more weight must be given to their right of access to a court. Consequently, even if the applicant had been adversely affected by the relevant flaws, in the particular circumstances of this case, the recoverability of success fees could not be said to have exceeded the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests. Nor could it be said that there had been a failure to strike a fair balance between the competing interests at stake.

Unlike in MGN Limited , the applicant in the instant case had also complained about the recoverability of the ATE premiums. However, in contrast to success fees, which aimed to compensate lawyers for their unsuccessful cases, in paying the ATE premiums unsuccessful defendants were not being required to contribute to the funding of other litigation and general access to justice. Consequently, the case for the recoverability of ATE premiums was, if anything, stronger than that for the recoverability of success fees. Notwithstanding, for the same reasons as for success fees, the requirement that the applicant pay these premiums had not exceeded the broad margin of appreciation accorded to the authorities in such matters.

Conclusion : inadmissible (manifestly ill-founded)

(See also MGN Limited v. the United Kingdom , 39401/04, 18 January 2011, Legal Summary ; Coventry v. the United Kingdom , 6016/16, 11 October 2022, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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