The implementation of the Human Rights Act 1998 incorporated into UK law article 8, guaranteeing the right to respect for private and family life, and its arch rival article 10, ­protecting the right to freedom of expression. Max Mosley’s hotly ­contested privacy action was the battlefield for the latest high-profile spat between the two enemies. Article 8 won.

The Formula One boss had ­previously lost his application to injunct the ­publication of details, photographs and video footage of his sexual activities because by the time he got to court 435,000 hits had been made on the online version of the article, and the video footage had been viewed approximately 1,424,959 times (see [2008] Gazette, 15 May, 23). Mr Justice Eady found that the ­information had ‘lost its privacy to the extent that there is nothing left for the law to protect’.

But rather than slink away, Mosley decided to fight the substantive privacy action (Mosley v News Group Newspapers [2008] EWCH 687 (QB)) and, with head held high – and hardly a glimpse of ­embarrassment – he fought on to tell a packed courtroom and the world’s media (ironic, perhaps) why the ­intimate details of these sexual ­activities were private and should not be published.

Established principles

‘There is nothing "landmark" about this decision,’ concluded Mr Justice Eady in his judgment. ‘It is simply the application to rather unusual facts of recently developed but established principles.’

Step one: did Mosley have a ­reasonable expectation of privacy with regard to his sexual proclivities, ­conducted in private with consenting adults? Yes. Only those of us with a pronounced sense of exhibitionism might be happy to have what we get up to in the bedroom – or on the kitchen worktop, or in the S&M ­dungeon – pictured in the press.

Step two: was there any public interest to be weighed on the defendant’s side of the scales to justify publication? No. The newspaper was unable to persuade the court that there was any Nazi element to what went on between Mosley and his five dominatrices, or that it was entitled to expose the criminal act of committing actual bodily harm. First, according to the judge, to suggest that everything German was Nazi would be offensive to Germans. Second, where the ‘harm’ was a mutually agreeable beating across the buttocks with a whip, to suggest that the public interest required disclosure of the details risked losing ‘all touch with reality’.

Upping the ante

But Mr Justice Eady does himself a disservice when he says that his ­decision is not ‘landmark’. Previously, awards for the publication of true but private material struggled to get into double figures – Naomi Campbell got a paltry £3,500 for publication of details of her therapy at Narcotics Anonymous. The judge accepted that though damages in defamation – which, being geared to personal injury awards, can reach £220,000 – could vindicate a reputation and restore the esteem of the claimant, ‘that is not possible where embarrassing personal ­information has been released for general publication’.

What was required in this case was something more than nominal damages which, if handed out in distaste at the claimant’s activities, could mean that ‘the more unconventional the taste, and the greater the embarrassment caused by the revelation, the less effective would be the vindication [and] the easier it would be for the media to hound minorities’. What was required was a sum which ‘marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party’. The appropriate sum was £60,000.

Interest levels

The judge did not, however, accede to the claimant’s claim for exemplary damages, available where a defendant, having deliberately committed a tort, took a calculated risk that any penalty imposed would be outweighed by the benefit from publication. First, there was ‘no English authority which establishes that exemplary damages are recoverable in the context of this newly developed form of action’. Second, the evidence of the journalist and the editor did not provide any ­support ‘for either recklessness as to unlawful conduct or calculation as to the advantages to be gained’.

The £60,000 is hardly going to break the bank for the defendant or chill the media’s right to free speech. And it is extremely unlikely that Fleet Street will cease to run stories of this nature where it considers that it has a sound public interest justification in publication. News Group Newspapers was no doubt confident that its public interest credentials were sound, but while recent cases suggest that the ambit of what one can protect by way of privacy appears to be expanding, the concept of public interest remains within the narrower confines of exposure of ­matters such as corruption, criminality and hypocrisy. What ‘public interest’ is not embracing, no matter how interesting it may be, is information that is merely of interest to the public.