Mosley v News Group Newspapers Ltd

Interim privacy relief may be refused where publication has already placed intimate material so widely in the public domain that an injunction would make little practical difference. The court must balance Articles 8 and 10 by conducting an intense focus on the specific rights engaged, the justification for restricting each right, and proportionality. Intrusive photographs or footage may remain legally distinct from the information they convey, and further publication may lack any legitimate public interest. Nevertheless, the practical utility of relief is decisive where the material is freely accessible elsewhere. The court should not make a futile order or a brutum fulmen.

The claimant, president of the FIA, sought an injunction under the privacy jurisdiction to restrain the defendant publisher from placing edited footage on its website. The footage showed sexual activities conducted in a private flat and had already been published online and reproduced on other websites. The claimant accepted that the events occurred but disputed their presentation as Nazi role-play.

The application was based on privacy under Article 8, not defamation. The central issues were whether the claimant retained a reasonable expectation of privacy, whether publication served a legitimate public interest, and whether interim relief was likely to be effective in light of Human Rights Act 1998, s.12(3).

1. Applicable approach. The court had to assess the likely merits of permanent relief before granting interim relief under s.12(3) of the Human Rights Act 1998. Articles 8 and 10 had equal status. The court therefore had to focus intensely on the specific rights claimed, consider the justification for restricting each right, and apply proportionality to each.
2. Privacy and public interest. The edited footage was intrusive and demeaning. Its further publication served no legitimate public interest. The defendant could answer the claimant’s denial of Nazi role-play by restating its allegations without displaying the footage.
3. Public domain and practical utility. Information may become so widely accessible that the law can no longer protect it in practical terms. Although photographs or footage may cause a fresh intrusion when viewed by additional persons, the court must consider the actual accessibility of the material and the realistic effect of an order. The footage had been viewed extensively and remained readily available through other websites.
4. Result. The material was so widely accessible that an order against the defendant would make very little practical difference. The claimant might no longer have a reasonable expectation of privacy in respect of the material, or it might have entered the public domain to the extent that no practical legal protection remained. The application was therefore declined.