Mosley v News Group Newspapers Ltd.

A person ordinarily has a reasonable expectation of privacy in consensual sexual activity conducted on private property. Publication is lawful only where an intense, fact-specific balancing of privacy and expression demonstrates a countervailing public interest strong enough to justify the intrusion. Moral disapproval, unconventional sexual tastes, adultery or technical criminality does not itself establish that interest.

Visual recording requires particular scrutiny because images may be substantially more intrusive than words. Damages may compensate distress, indignity and loss of autonomy, and may vindicate the infringed right. Exemplary damages are unavailable for infringement of privacy because their extension to this developing cause of action is neither established by law nor necessary and proportionate.

The claimant brought a first-instance claim against the publisher of the News of the World for breach of confidence and unauthorised disclosure of private information. A participant had secretly filmed consensual sexual and sado-masochistic activities on private property. The newspaper published articles, photographs and online video extracts alleging that the gathering involved Nazi and concentration-camp role-play.

The defendant contended that the claimant lacked a reasonable expectation of privacy or, alternatively, that publication was justified by public interests in alleged Nazi role-play, criminality and the claimant's public position. The court determined whether the information was private, whether publication was justified, what compensatory relief was appropriate and whether exemplary damages were available.

1. Judgment for the claimant. The claimant had a reasonable expectation of privacy in consensual sexual activity conducted on private property. Sexual activity concerns an especially intimate part of private life. Payment to some participants, the number of participants and consensual recording for their own use did not remove that expectation. Woman E also owed an established duty of confidence and breached it by secretly recording and selling the information.
2. Once that expectation was established, Articles 8 and 10 required an intense focus on the particular facts. Neither right had automatic priority. The decisive question was whether a countervailing public interest justified the nature and degree of the intrusion, applying proportionality.
3. The evidence did not establish Nazi role-play, imitation or approval of Nazi behaviour, or mockery of Holocaust victims. German speech, uniforms, prison role-play, beatings and striped clothing did not, in context, establish such a theme. The alleged theme therefore supplied no public-interest justification.
4. Technical or trivial illegality does not automatically justify intrusive journalism. The consensual activity was far removed from the dangerous conduct considered in Brown [1994] 1 AC 212. Nor did adultery, unconventional sexual tastes, depravity as perceived by others, or moral disapproval permit exposure. The private sexual conduct of consenting adults is ordinarily their own business unless a sufficiently strong public interest intervenes.
5. Publication of the photographs and video required separate justification because visual material is particularly intrusive and may make the viewer a voyeur. Neither the images nor the verbal descriptions contributed to a debate of general interest. The clandestine recording, articles, photographs and online video were unjustified.
6. Exemplary damages were unavailable. No English authority extended them to infringement of privacy, and such punitive relief was neither prescribed by law nor necessary and proportionate under Article 10(2). In any event, the evidence did not prove deliberate or reckless wrongdoing coupled with a calculation that publication would be profitable after compensatory damages.
7. Compensatory damages could address distress, hurt feelings, loss of dignity and autonomy, and vindicate the infringed right. Aggravation included the follow-up publication and continued Nazi allegations. Deterrence was not a distinct compensatory purpose. A proportionate award of £60,000 was made.

not stated in the judgment.