New Group Newspaper

The common law dictates that the decisions of higher courts are binding on lower courts within the framework of the court’s hierarchal system. Under this doctrine of precedent or stare decisis, the court will typically justify the decision to follow a particular previously decided case by reconciling the facts with the legal rational of the applicable case. This technique is known as the ratio decidendi. When a court departs from a previously decided case and provides a reasoning for that departure this technique is referred to as the obiter dicta.

Under the common law doctrine of precedent the ratio decidendi is binding on all lower courts and the court of original jurisdiction whereas the obiter dicta will not be binding. The rational behind the ratio decidendi is founded upon principles of fairness and certainty. By virtue of the ratio decidendi disputants are at liberty to identify grounds of appeal on the grounds of a misapplication or error in law or fact or an error in the exercise of the inherent discretion of the court.

Moreover, disputants are able to understand or determine why the case was decided in the way that it was. In Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) the plaintiff, President of Formula 1 prosecuted a suit against New Group Newspaper Ltd. with respect to an article appearing in one of its daily newspapers under the head “F1 Boss Has Sick Nazi Orgy With 5 Hookers. ” Appearing under the article was a subheading titled “Son Hitler-loving Fascist in Sex Shame.

” Additionally the publishing newspaper displayed video and other images relating to the same articles at its website and another article followed up under the head “Exclusive: Mosley Hooker Tells All: My Nazi Orgy with F1 Boss. ” The plaintiff’s claim alleged breach of confidentiality or “the unauthorised disclosure of personal information” contrary to Article 8 of the European Convention on Human Rights. Article 8 of the Convention makes provision for the protection and respect of the individual’s private family life and private documents.

The plaintiff’s main argument was that the sexual activities reported by the defendant were private in nature and that there was a “pre-existing relationship of confidentiality between the participants. ” In considering the plaintiff’s claim the court determined that it was bound to reconcile the tension between Article’s 8 and Article 10 of the European Convention on Human Rights. Article 10 of the Convention makes provision for freedom of expression provided said freedom does not infringe upon concepts of confidentiality or cause injury to the subject’s reputation.

The court in determining that the plaintiff had a legitimate claim with respect to confidentiality within the extended ambit of Article 8 set out the ratio decidendi by reference to recent precedents. The ratio decidendi was contained in Eady J. ’s contention that Article 8 has been applied by the courts to extend the reasonable expectation of privacy and confidentiality that an individual is entitled to rely on. Citing Campbell v MGN Ltd.

[2004] 2 AC 457, Eady J determined that both Articles 8 and 10 were just relevant to individual parties, non-public authorities as it were between individuals and “public authorities”. Eady J determined that the correct approach to the plaintiff’s claim was demonstrated by a more recent case, Re S (A Child) [2005] QB 73 in which the practice of reconciling Articles 8 and 10 was referred to as the “new methodology” with respect to traditional breach of confidentiality actions.

The court’s decision/ratio decidendi in Mosley was derived from developments in recent authorities, notably the cases of Campbell and Re S and restated in McKennit v Ash [2008] QB 73. Based on these authorities Eady J determined that when attempting to reconcile the right of privacy contained in Article 8 of the Convention the court is required to determine whether or not the complainant had a reasonable expectation of privacy. Once the issue of privacy was resolved the court was then required to determine which right, the right of privacy or freedom of expression should prevail:

“… in light of an ‘intense focus’ upon the individual facts of the case. ” In balancing the competing rights under Articles 8 and 10 of the Convention the court is required to determine whether or not the information obtained as a result of a breach of confidentiality or an intrusion into the plaintiff’s privacy is such that its publication serves the public interest. Relying on Campbell and Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] AC 359, Eady J submitted that “political speech” would serve a greater public interest than “gossip or ‘little tattle.

’” Eady J determined that the question of whether or not there was a reasonable expectation of privacy has been adequately addressed by the courts in the past. The authorities appear to agree that sexual activity particularly when conducted on private property invoked protection under Article 8. This position dates back to the finding of the court in Dudgeon v UK [1981] 4 EHRR 149. In Dudgeon, the European Court determined that sexual conduct “concerns a most intimate aspect of private life.

” Drawing on established authority, notably Carxi (No. 2) v Italy [2004] EHRR 47 that clandestine recordings of private activity also violated Article 8, Eady J. ruled that the covert recordings of the plaintiff’s sexual activities at his residence was also an invasion of his privacy. Moving on to the second part of the test, Eady J considered whether or not the publication of the information obtained in violation of Article 8 could be justified under Article 10 on the grounds that its release served the public interest. Once again, Eady J.

, relying on established judicial decisions as a basis for the ratio decidendi determined that the publication could not be justified. Eady J explained that it was firmly established that whether or not a specific publication served the public interest was a matter for the inherent discretion of the court. In exercising that discretion, Eady J said that the court was required to pay due regard to “editorial judgment” as held in Jameel and to discern whether or not the benefits of public interests were disproportionate to the harm incurred to plaintiff.

Drawing on this ratio decidendi, Eady J ruled that had it been true that the sexual party publicized by the defendant made a mockery of the holocaust it is conceivable that it might have been in the public interest and the editorial judgment may have been capable of justification. However, those claim were unfounded and since the question of public interests was for the court alone, Eady J ruled that the publication was an intrusion into the plaintiff’s privacy and did not serve a public interest.

In other words, the ratio decidendi was founded upon the legal premises that the private sexual activities carried on by the plaintiff in his home were private and of no interest or concern to the public at large unless they were such as to invoke criminality or political matters of public concern. (Word count: 1228) (b) What was the plaintiff’s cause of action in this case? Why was it such? Why did the plaintiff not claim in tort? The plaintiff’s cause of action in Mosley was founded on traditional breach of confidentiality with respect to the “unauthorized” publication of private and confidential information.

By taking this approach the plaintiff invoked the protection afforded the individual under the auspices of Article 8 of the European Convention on Human Rights. As such the claim was not based in tort. To start with there is no real basis for an actionable tort under UK tort law for invasion of privacy, since privacy is indirectly construed under the tort of a breach of confidentiality. In order to make a viable claim to intrusion of one’s privacy it is necessary to invoke convention rights under the European Convention on Human Rights which specifically protects against invasions of privacy.

This so since privacy itself is not a specific tort. Privacy as such, in the UK has developed as an amalgamation of common law precedents under the tort of confidentiality and the privacy protection contained in Human Rights Act 1998 which implements the European Convention on Human Rights. The plaintiff’s claim although founded under traditional concepts of the tort of confidentiality invoked the protection of Article 8 of the European Convention on Human Rights.

While the plaintiff may have had a claim under the tort of nuisance or trespass with respect to the clandestine recordings of his sexual activities, the specific defendant had not committed the trespass or the nuisance and had merely published them. Taken into account the protection afforded the media under the freedom of expression clause under Article 10 of the European Convention on Human Rights, the plaintiff’s claim would have been uncertain and the court’s finding unpredictable.

By pleading a breach of confidentiality under the long arm of common law precedents together with Article 8 of the Convention the plaintiff’s claim had a far more solid foundation against the media defendant. The tort of defamation was not a suitable avenue for the plaintiff in Mosley since tort requires proof of “malicious falsehoods. ” There is no indication that the plaintiff in Mossley’s case denies that the information contained in the publication was untrue or maliciously false.

It therefore follows that a claim in defamation had no legal basis and was bound to fail. Since the plantiff’s claim argued against the propriety of obtaining information that was private in nature and the subsequent publication of it his claim was correctly founded on the joint application of confidentiality laws and privacy protection as provided for under the European Convention on Human Rights. Breach of confidentiality, although previously a tort has been intricately tied to Article 8 and provided the best method for the plaintiff in Mosley to pursue his claim.

Under confidentiality concepts the plaintiff is at liberty to rely upon an implied or express obligation on the part of the person to whom the information is imparted not to disclose that information. While the plaintiff’s claim was one for a breach of confidentiality it necessarily invoked protection of privacy under the Convention and proceeding as he did was necessary to invoke Article 8 protection. Word Count 619 (c) Was the judge exercising his own moral judgment in deciding that the plaintiff could succeed in this case?

There is nothing in the judgment of Eady J to indicate that he exercised his own moral judgment in finding for the plaintiff in Mosley. Moreover, Eady J did not state either expressly or by implication what his personal moral position was. He relied entirely on the facts of the case with reference to decided authorities and by all indications he decided the case objectively. For instance on the question of criminality, he relied on the findings of previous judges and determined that it has been conclusively determined that even in the most serious criminals can not be denied the Convention protection with respect to privacy.

To support his position, Eady J cited the case of Silver v UK [1983] 5 EHRR 347 and Polanski v Conde Nast Publications Ltd. [2005] 1 WLR 637. The manner in which Eady J regarded the evidence is a clear indication that he did not resort to his own moral judgment. For instance in addressing a claim by the defendant that the claimant had been maintaining a brothel on the premises, Eady J. made no personal observations on the matter and confined himself to the evidence and the applicable law. With respect to the brothel claim he noted that: “This would not bear close scrutiny and is certainly not consistent with the evidence…

It seems clear from the authorities that for premises to fall within the definition of a brothel it is necessary to show that more than one man resorts to them for whatever sexual services are on offer. The only man enjoying the activities in this case was the claimant himself… There was never any question of a business being carried on there or the claimant taking a cut of the proceeds. ” Surely if Eady J entertained any personal moral views of the facts of the case he was clearly setting them aside and focusing entirely on the evidence and the law.

This particular excerpt represents the manner in which Eady J treated the facts of the case throughout his judgment. Eady J addressed the question of depravity and adultery in his ruling in a response to the defendant’s claim that nature of the sexual activities in question could give rise to “legitimate journalistic investigation or public interest. ” Eady J commented that case law indicates sexual conduct whether depraved or not is a matter of personal opinion and does not automatically give rise to a “genuine public interest.

” Again Eady J made no comments as to his personal moral perspective and only spoke to the manner in which the courts have treated the morality of individual sexual preferences and conduct. Eady J. said that: “The modern approach to personal privacy and to sexual preferences and practices is very different from that of past generations. First, there is a greater willingness, and especially in the Strasbourg jurisprudence, to accord respect to an individual’s right to conduct his or her personal life without state interference or condemnation.

It has now to be recognised that sexual conduct is a significant aspect of human life in respect of which people should be free to choose. That freedom is one of the matters which Article 8 protects: governments and courts are required to afford remedies when that right is breached. ” Indicating that his decision was separate and apart from any moral judgment, Eady J went on to state that sexual conduct is not for public exposure unless it clearly violates the criminal law. It is never permissible to expose sexual conduct for purely moral reasons.

Moreover, it is not for the media to “undermine human rights” and for judges to deny them “merely on grounds of taste or moral disapproval. ” While everyone has a right to a moral or religious opinion or belief with respect to certain sexual activities they are not at liberty to dictate the manner in which others exercise their right to live. Eady J remained detached from the morality of the claimant’s conduct further by stating that judges were not concerned with moral or religious views but rather the question of whether or not a breach had occurred.

If the law has been respected, private activities by adults “is essentially no-one else’s business. ” Eady’s J’s position against incorporating moral judgments into the determination of the issues between the parties is deeply entrenched in the administration of justice under British and Commonwealth jurisprudence. The view to be taken by judges in all matters placed before it for adjudication was stated by Price J in CC v AB [2007] EMLR 11 and cited by Eady J in Mosley. Price J indicated that judges in rendering a decision are required to guard against leaving the impression that they are expressing a personal social or moral view.

While it is certainly permissible for judges to hold a “personal moral” view on the matter before it, they are not permitted to reflect on those personal views “when interpreting and applying the law. ” In adapting this approach, Eady J stated in no uncertain terms that the question before the court is not the morality of the conduct. The question for the court was whether or not the publication of that conduct was justified on public interest grounds and the court would not go beyond that.

This approach is founded on the principles of the rule of law enunciated by John Stuart Mill that the conduct of an individual is his alone unless it harms others. The court would only refer to established criteria and not make any references or considerations to personal moral views. It is quite obvious that Eady J was not concerned about his own moral views and did not allude to them in rendering his judgment. It can be discerned from his judgment that he neither stated or considered his own moral judgment and decided the case with reference to previous decisions on similar matters.

The judgment in Mosley was rendered by adherence to the doctrine of stare decisis which is designed to obtain continuity, predictability and certainty of the substantive law. If judges resorted to personal moral judgment in each case the continuity, predictability and certainty enshrined in the doctrine of stare decises would be compromised. It is the very nature of this common law doctrine that prevents a judge resorting to his or her own personal moral code. This practice of relying on previous decisions was prevalent in Eady J’s decision in Mosley. Word Count 1094 (d) How did his Lordship arrive at the amount of damages in this case?

Would you have awarded a different amount and, if so, why? Eady J’s treatment of the Mosley case was entirely characterized by a great reliance upon judicial precedent. His approach to the measure of damages was no different from his application and construction of the substantive law and issues. He first looked to the award of damages allowed in like cases and came to the conclusion that based on cases containing claims similar to those made in Mosley, for example the Campbell case, Lady Archer v Williams [2003] EMLR 38, Douglas v Hello! Ltd [2003] 3 All ER 996 and McKennit v Ash [2006] EMLR 178, awards had been “modest.

” In determining the appropriate measure of compensatory damages Eady J referred to the purpose of Article 8. That purpose was to protect the dignity and autonomy of the individual. Judicial precedent, particularly the rulings in Ashley v Chief Constable of Sussex [2008] 2 WLR 975 and Chester v Afshar [2005] 1 AC 134 have concluded that damages should be reflective of the “vindication to mark the infringement of a right. ” Be that as it may, Eady J determined that for the purposes of measuring the proper level of compensatory damages there was not much assistance to found among the various precedents.

In order to arrive at a just award of damages Eady J turned his attention to Lord Reid’s assertion in a defamation case Cassell v Broome [1972] 2 WLR 645 that “regard should be had to the conduct of the defendant. ” In other words if the conduct was such that it aggravated or exemplified the injury then damages should be awarded so as to reflect this fact. While the defendant did not revisit allegations of sexual depravity, they persisted in their attacks on the claimant’s Nazi practices and this would have aggravated the damages allowed.

Eady J in awarding 60,000 pounds in compensatory damages also took into account vitiating factors in that the claimant put himself in a position where he could be exposed publicly by carrying on his sexual conduct with the persons that he did. The damages awarded were designed to reflect the recklessness with which the plaintiff carried out his sexual activities and the fact that his privacy rights had been infringed. The fact that the judge felt that the claimant had acted recklessly however is not a matter that he should have taken into account and had I determined the case I would not have taken the claimant’s conduct to that extent.

If the claimant had been reckless he could not have had a reasonable expectation of privacy. For this reason, Eady J’s finding of reckless conduct is inconsistent with this finding that the claimant had a reasonable expectation of privacy. If the defendant’s conduct was such that he placed himself at risk of having his private sexual relations publicly exposed he obviously did not reasonably expect any measure of privacy in his sexual activities. It therefore follows that once the judge determined that the plaintiff had a reasonable expectation of privacy the matter should have ended there.

In this regard I would have ignored the recklessness factor and awarded twice as much damages. Word Count 541 (e) Why did his Lordship refuse to award exemplary damages in this case? How convincing are his reasons? In refusing to allow an award of exemplary damages Eady J explained that exemplary damages are only allow in two distinct categories of cases. According to Lord Devlin in Roakes v Barmard [1964] AC 1129 exemplary damages would be allowed in cases where the complaint was relative to arbitrary or unconstitutional actions on the part of public officers.

Since the complaint in Mosley was against a private entity the category of exemplary damages under Roakes would not be applicable. The second category of allowable exemplary damages will only apply under the law of tort in circumstances were the act complained of was: “a deliberate and knowing commission of a tort and a calculation on the part of some identifiable individual or individuals tot he effect that more is to be gained by the wrongful act than is likely to be suffered by paying compensatory damages.

It is accepted that recklessness (as opposed to mere carelessness or negligence) is to be equated with deliberate conduct in this context. ” Eady J however, went on to say that there is far too much uncertainty in the breadth of judicial precedent as to whether or not invasion of privacy can be properly characterized as a tort. In the absence of a ruling in that regard from the House of Lords, Eady J proceeded oon the basis that invasion of privacy was therefore not a tort and the question of exemplary damages would therefore not arise.

Citing Lord Reid on Cassell v Broome Eady J said that: “… I would, logic or not logic, refuse to extend the right to inflict exemplary damages to any class of case which is not already clearly covered by authority. ” Taking the point further, Eady J explained that the tension between Articles 8 and 10 of the European Convention on Human Rights both arise in cases where intrusion of privacy involves the unauthorised release of private information. In this regard the court had to take into account the freedom of expression defence invoked by the defendant.

Article 10 while permitting freedom of expression also qualifies that right by allowing its containment on the grounds of necessity and proportionality. The question then turns on: “Is this additional dimension of punishment necessary or proportionate? ” These additional dimensions of punishment are adequately accounted for under the head of aggravated damages which form a part of the compensatory damages regime. Aggravated damages are already permitted in cases where the courts find it necessary to express “disapproval of a defendant’s conduct.

” When this fact is taken together with the fact that there appears to be a measure of uncertainty and hesitation with respect to awarding exemplary damages, Eady J refused to make such an award. Demonstrating the hesitant attitude toward exemplary damages, Eady J pointed out that there are two conflicting attitudes toward this award of damages each of which have been submitted to Parliament. In 1991 the Neil Committee recommended that exemplary damages be abrogated under the tort of defamation and the Law Commission of 1997 disagreed. Be that as it may, Parliament has failed to take account of either recommendation.

Eady J explained further that damages are about compensation and not about penalties and the latter becomes more controversial when the penalty is not in favour of the government but a private individual. To this extent exemplary damages represents a form of double compensation. Moreover, in most cases where exemplary damages are awarded those damages are fixed by a jury rather than a judge. Given this fact and the uncertainty and rare application of exemplary damages Eady J was not comfortable venturing into what is tantamount to uncharted territory. In summary Eady J submitted that:

“I therefore rule that exemplary damages are not admissible in a claim for infringement of privacy, since there is no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the tests of necessity and proportionality. ” Even if there were sufficient precedents and statutory laws capable of permitting exemplary damages in the Mosley case, Eady J was not convinced that the evidence supported that the necessary state of mind required to justify such an award. In a case of this kind where different employees are involved it is impossible to identify a collective and connecting state of mind.

The authority for disallowing such an analysis is found in the case of Z ltd. v A-Z, AA-LL [1981] QB 558. There was no convincing evidence that the defendant calculated that the gain would surpass any award of damages in favour of the claimant, a necessary element for an award of exemplary damages under the law of tort. As Eady J explained just because the defendant in this case contemplated that the publication of the story would improve its newspaper sales and income was not sufficient to justify a claim of calculation.

Likewise, Eady J contended that there was no evidence capable of justifying a claim that the defendant knew or ought to have known that publication of the information would amount to an invasion of privacy claim. The evidence may allow for a question as to the quality of the journalism but certainly not a claim that the defendant was indifferent to the legality of the publication. It therefore follows that Eady J, having no clear guidance from the previously decided cases on the question of exemplary damages for Article 8 claims was not prepared to set what would have been a new precedent by awarding exemplary damages.

Moreover, the academic uncertainty attached to the opposing submissions of the Neil Committee and the Law Commission gave rise to further uncertainty. This uncertainty was further exemplified by Parliament’s lack of response. Even so, Eady J determined that even if exemplary damages were allowable in this case, the grounds upon which exemplary damages could be awarded had not been established by the evidence before him. Word Count 1063

(f) Explain why relevant articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms were applicable in this case. How does this case illustrate the influence that human rights norms can have on the development of common law systems of law? The European Convention for the Protection Human Rights and Fundamental Freedoms was implemented the Council of Europe in 1950 and indorsed by the European Union imposing upon Member States a positive duty to subscribe to the Convention.

The UK discharged its duty by implementing the Human Rights Act 1998 which incorporates each of the Articles contained in the European Convention on Human Rights. By doing so, Article 8 became part of the UK’s law. Article 8(1) of the Convention provides as follows: “Everyone has the right to respect for his private and family life, his home and his correspondence. ” Based on this provision the individual has the right to control what personal information and data can be released to the public and in what manner.

In this regard, Article 8(1) provided the claimant in the Mosley case with a right to invoke protection since private information from his home was released without his consent or knowledge. Article 10 of the European Convention is likewise relevant since it provides the defendant with a viable defence if the facts of the case support it. Article 10 (1) provides as follows: “Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

” There is obvious tension between the articles and both are equally relevant to a claim that personal information was released unlawfully. Further tension is created by the provisos accorded both Articles. For example Article 8(2) ensures that protection of privacy is not an absolute right by allowing the circumventing of those rights in instances where it is necessary for national security purposes or when the exercise of the privacy infringes upon other freedoms of other individuals.

Likewise Article 10(2) limits the exercise of freedom of expression in circumstances where it harms the: “… reputation or the rights of others, for preventing the disclosure of information received in confidence… ” The defendant in Mosley was purportedly acting within the ambit of Article 10(1)’s freedom of expression when publishing the articles which gave rise to the plaintiff’s claim that there was a breach of confidentiality within the scope and range of Article 8(1)’s privacy protection regime.

It is therefore inconceivable that the issues could be distinguished from Articles 8 and 10 of the European Convention on Human Rights. Since protection of privacy is not specifically accounted for under British jurisprudence Article 8 was the obvious choice for the adjudication of the plaintiff’s claim. Within the legal framework of the European Convention of Human Rights comes the introduction of an international code of human rights.

While these rights do not abrogate or usurp the functions of common law principles it influences the development of common law. All judgments must be made by reference to the rights contained in international treaties on human rights to which the country where the court serves is a member of that treaty. Even so the common law continues to play a pivotal rule in the construction and application of the rights contained in the European Convention on Human Rights. This is so since the rights by and large are not absolute and are subject to certain exceptions.

It is therefore left to the application of common law principles to define those rights and limitations by reference to both domestic law and those provided by the European Court of Justice. Common law under the auspices of the doctrine of precedent lays bare the separation of powers. It provides a bastion between the common man and executive powers to the extent that convention rights are enforced and protected by the courts in the tradition of judicial independence in the creation, expansion and application of those common law principles that demand accountability.

By virtue of the application of common law principles judges are required to justify their decisions under the doctrine of ratio decidendi. This reasoning provides for judicial review and the appeal’s process. In this regard the tensions that often exist between competing rights as in Articles 8 and 10 of the European Convention on Human Rights will remain a mat