European Court of Human Rights considers conflict between privacy rights and press freedom in Naomi Campbell and Max Mosely cases

The European Court of Human Rights began the new year by considering the conflict between the right to privacy and freedom of the press, in two separate cases. On January 11, 2011, it issued its written decision in a case involving super-model Naomi Campbell. That same day, it heard oral argument in a case involving Max Mosely, the former president of the Formula One auto racing organization.

The conflict considered by the Court in these two cases is the conflict between the right to respect for private life guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to freedom of expression guaranteed by Article 10 of the Convention.

Both cases began in British courts where Campbell sued The Mirror for invading her privacy, and Mosley sued News of World for invading his. Campbell and Mosely both won their cases, though she was more satisfied with her victory than he was. As a result, The Mirror pursued the Campbell case to the European Court of Human Rights where it argued that UK law violated its Article 10 free expression rights. And Mosley himself took his case to the Human Rights Court, arguing that UK law violated his Article 8 privacy rights.

In the Campbell case, the UK House of Lords ruled - as reported by the Entertainment Law Reporter back in 2004 (at page 12) - that The Mirror invaded Campbell's privacy by reporting that she was being treated for drug addiction. The House of Lords upheld the quite modest £3,500 judgment that had been awarded to her by a trial court. Under British law, Campbell also was entitled to recover her costs, including attorneys fees. Those came to a whopping £850,000, including £365,000 in "success fees" she had agreed to pay her attorneys if they won, as they did. The Mirror thereafter settled the case for £500,000. But the settlement didn't deprive The Mirror of its right to pursue a claim against the UK itself, before the European Court of Human Rights, alleging that UK law violated the Human Rights Convention. In its January 11th decision in  MGN Ltd. v. United Kingdom, the Human Rights Court held that the invasion of privacy judgment (called "breach of confidence" in UK law) did not violate The Mirror's Article 10 free expression rights, but the "success fees" portion of the cost-judgment did. (The case isn't quite over yet, because of a dispute over how much of the £500,000 settlement was payment towards the "success fees.")

In the Mosley case, the former Formula One head was awarded £60,000 for the invasion of his privacy by a News of the World article headlined "F1 boss has sick Nazi orgy with 5 hookers." The opening sentence of the article read, "Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert." And, as if the article weren't bad enough, the News of the World's website featured video of the sex activities in which Mosley and others had participated. Mosley had sought more than the £60,000 he was awarded; he also asked for punitive damages, but didn't get those from the UK court. In his case against the UK before the Human Rights Court, Mosley doesn't complain about not getting punitive damages. Instead, he has argued that UK law violates Article 8 of the Human Rights Convention, because UK law did not require News of the World to inform him it intended to publish the offending article and video before doing so, thereby depriving him of the opportunity to seek an injunction barring their publication. On January 11th, the Human Rights Court heard oral argument in the case, a video recording of which is available at the Court's website.