Guest post by Rónán Ó Fathaigh, PhD candidate at Ghent University. For more information on Rónán, find him here.
This week the Fourth Section of the European Court delivered its much anticipated judgment in Mosley v. the United Kingdom, which unanimously held that the absence of a prior-notification requirement on newspapers to give advance notice to a person before publishing private details does not violate Article 8.
The applicant in Mosley had successfully brought legal proceedings against a British newspaper for invasion of privacy over a series of articles which detailed the applicant’s sexual encounter with a number of prostitutes. It was also alleged that the applicant had engaged in Nazi role play during the sexual encounter. The articles had been based on a clandestine recording, and the video was made available on the newspaper’s website. The domestic courts found that there had been no Nazi element to the sexual activities, and held there had been a violation of the applicant’s right to privacy, awarding £60,000 in damages.
Having been successful in the domestic proceedings, the applicant took the unusual step of making an application to the European Court. The applicant argued that the award of damages was not an adequate remedy for a violation of privacy, and that the only effective remedy would have been an injunction to prevent publication. It was argued that the failure of the United Kingdom to impose a legal duty upon newspapers to give prior-notification to a person before publishing private details was a violation of its positive obligations under Article 8. It was argued that such a duty would provide a person with the opportunity to seek an injunction to prevent publication.