Max Mosley and the English Right to Privacy

Abstract

Mosley v. News Group Newspapers marked a landmark moment for the English right to privacy for several reasons, which this Note explores in four sections. Part I illustrates how Mosley’s recovery for invasion of privacy is at odds with centuries of English common law and marks the triumph of a movement that has circumvented prior judicial and legislative refusals to recognize such a stand-alone right. Part II explains how, despite England’s long history of denying a privacy tort’s existence, the last ten years have seen the necessary emergence and evolution of a de facto right to privacy under the influence of the European Convention on Human Rights. Part III analyzes the Mosley opinion itself: how it drew upon recent precedent, how it extends that precedent, and how it crystallizes the balancing test for privacy interests going forward. This section notes that Mosley is an atypical “landmark” case because the groundwork for the decision was laid down by earlier cases. This section also argues that the Mosley holding does not present the grave threat to the press feared by the media. Finally, Part IV addresses what may eventually be the lasting legacy of Mosley’s case: his failed appeal to the European Court of Human Rights in Mosley v. United Kingdom. In this section, I argue that the Mosley decision in the English court ought to be the furthest extent of this new right to privacy, and that the ECHR correctly recognized this in its recent opinion. Part IV concludes by discussing some of the dangers of Mosley’s demand for a system of prior notification and why the ECHR rejected such a requirement.

Keywords: privacy, confidentiality, Max Mosley, British law, English law, comparative law, torts, European Court of Human Rights