CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 mai 2011

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display:inline-block } .s30B52FCF { width:208.1pt; display:inline-block }     FOURTH SECTION         CASE OF MOSLEY v. THE UNITED KINGDOM   (Application no. 48009/08)                 JUDGMENT     STRASBOURG   10 May 2011     FINAL   15/09/2011     This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Mosley v. the United Kingdom , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President,   Nicolas Bratza,   Ljiljana Mijović,   David Thór Björgvinsson,   Päivi Hirvelä,   Ledi Bianku,   Nebojša Vučinić, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 11 January 2011 and 12 April 2011, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in an application (no. 48009/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Max Rufus Mosley (“the applicant”), on 29 September 2008. 2.     The applicant was represented by Collyer Bristow LLP, a firm of solicitors based in London. The United Kingdom Government (“the   Government”) were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office. 3.     The applicant alleged that the United Kingdom had violated its positive obligations under Article 8 of the Convention, taken alone and taken together with Article 13, to ensure his right to respect for his private life. 4.     On 20 October 2009 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     The applicant and the Government each filed written observations (Rule 54 § 2 (b)). Third-party comments were also received from Guardian News & Media Ltd, The Media Lawyers’ Association and Finers Stephens Innocent on behalf of The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers’ Association, European Publishers’ Council, The Mass Media Defence Centre, Romanian Helsinki Committee, The Bulgarian Access to Information Programme (AIP) Foundation, Global Witness and Media Law Resource Centre, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 (a)). 6. A hearing in the case took place in public in the Human Rights Building, Strasbourg, on 11 January 2011 (Rule 59 § 3). There appeared before the Court:   (a)     for the Government   Mr   D. Walton ,   Agent ,   Mr   J. Eadie QC,   Counsel ,   Mr   A. Jeeves ,   Adviser ;   (b)     for the applicant   Lord   Pannick QC,     Mr   D. Sherborne ,   Counsel,   Mr   M. Mosley ,   Applicant,     Mr   D. Crossley ,   Mr   T. Lowles ,   Solicitors .     The Court heard addresses by Mr Eadie and Lord Pannick and their answers in reply to questions put by the Court. 7.     On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1) but the present case remained with the Chamber constituted within the former Fourth Section.   THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1940 and lives in Monaco. 9 .     On 30 March 2008, the News of the World , a Sunday newspaper owned by News Group Newspapers Limited, published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities, who was paid in advance to do so. An   edited extract of the video as well as still images were also published on the newspaper’s website and reproduced elsewhere on the internet. The   print version of the newspaper invited readers to view the video, providing the website address of the newspaper. 10 .     Later that same day, the applicant’s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, 31 March 2008, the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without 24 hours’ notice. Such notice was given by letter dated 3   April 2008 and faxed at 1.19 p.m. that day. 11 .     The edited video footage was viewed over 1.4 million times over 30   and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies. 12 .     On 4 April 2008 the applicant commenced legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage. 13 .     On 6 April 2008 a second series of articles on the applicant’s sexual activities was published in the News of the World . 14 .     On 9 April 2008 Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet. 15 .     In assessing the approach to be taken by the court to the granting of an interim injunction, he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where those rights came into conflict with the rights of other persons, and in particular the rights of the media to freedom of expression: “28... i) No Convention right has, as such, precedence over another; ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an ‘intense focus’ is necessary upon the comparative importance of the specific rights being claimed in the individual case; iii) The Court must take into account the justification for interfering with or restricting each right; iv) So too, the proportionality test must be applied to each.” 16 .     He continued: “29. Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict with those of the Respondent company under Article 10. One question which has to be answered is whether, in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication.” 17 .     Eady J considered that there was no public interest in publication of the images powerful enough to override the applicant’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs, observing: “ 30. ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley’s sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World . There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent’s website.” 18 .     However, as to the extent of the applicant’s reasonable expectation of privacy, Eady J noted that the material had been seen by thousands of people around the world and that it continued to be available. He went on: “33. ... The Court must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless, a point may be reached where the information sought to be restricted, by an order of the Court, is so widely and generally accessible ‘in the public domain’ that such an injunction would make no practical difference. 34. As Mr Millar [for News Group Newspapers Limited] has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen . It is inappropriate for the Court to make vain gestures.” 19 .     He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference, noting: “36. ... The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.” 20 .     The edited video footage was restored to the News of the World website shortly afterwards. 21 .     In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World . As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place: “Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not? A: That was a major concern, yes. Q: You were worried that the court might grant an injunction. A: It was a consideration, yes. ... Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified? A: It is a risk all newspapers are faced with these days. Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there? A: No. It happens a lot. Q: But you were not prepared to risk that on this occasion? A: On this occasion.” 22 .     On 24 July 2008 judgment was handed down in the privacy proceedings. 23 .     Regarding the allegations in the articles that there was a Nazi theme, Eady J noted that once the material had been obtained, it was not properly checked for Nazi content and that the German was not even translated. Instead, those concerned were simply content to rely on general impressions, which Eady J considered to be “hardly satisfactory” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations, especially that of mocking the treatment given to concentration camp inmates.   He was prepared to accept that the journalist responsible for the story and the editor thought there was a Nazi element, not least because that was what they wanted to believe. He   concluded: “170. The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached ‘in the round’, as Mr   Thurlbeck [the journalist] put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler [the   editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘mocking’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘responsible journalism’ ... [T]he judgment was made in a manner that could be characterised, at least, as ‘casual’ and ‘cavalier’.” 24 .     Eady J went on to consider the newspaper’s assessment, prior to publication, of the lawfulness of publishing the articles. He observed that, in the context of privacy, there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion. He   considered that he was not in a position to accept the applicant’s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed, nor could he conclude that they were genuinely indifferent to whether there was a public interest defence. While, he said, they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, that was not the same as genuine indifference to the lawfulness of this conduct. He noted: “209. It is also clear that one of the main reasons for keeping the story ‘under wraps’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.” 25 .     Eady J concluded that the newspaper articles and images constituted a breach of the applicant’s right to privacy. He found that there were no Nazi connotations in the applicant’s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images. 26 .     On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. He   considered it questionable whether deterrence should have a distinct, as opposed to a merely incidental, role to play in the award of compensatory damages, noting that it was a notion more naturally associated with punishment. He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall. He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant. Any award against the News of the World would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “chilling effect” on freedom of expression. 27 .     Eady J recognised that the sum awarded would not constitute adequate redress, noting: “230. ... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on. 231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.” 28 .     The applicant was awarded GBP 60,000 in damages and recovered approximately GBP 420,000 in costs. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined. A final injunction was granted against the newspaper. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Press Complaints Commission 29 .     The Press Complaints Commission (“PCC”) is an independent body set up to examine complaints about the editorial content of newspapers and magazines, and their websites, in the United Kingdom. If a complaint is upheld, a public ruling will be issued by the PCC and the newspaper or magazine concerned is obliged to publish the critical ruling in full and with due prominence. 30 .     On 18 November 2008 the PCC upheld a complaint by Mr P. Burrell that the News of the World had published an article about him which was inaccurate, in breach of clause 1 of the Editors’ Code of Practice (see further paragraph 31 below). The newspaper had failed to approach him for comments prior to publication. In its adjudication, the PCC noted: “The [PCC] has previously said that failure to contact the subjects of articles before publication – while not obligatory – may constitute a lack of care under Clause 1 in some circumstances. It has never said that people have no right ever to comment on a story, or to be offered a right of reply, if they have misled people in another context. The [PCC] was also aware of the newspaper’s concerns about an undeserved injunction being granted. However, it did not consider that this meant that the requirements of the Code did not apply. Given the nature of the story, and how the newspaper wished to present it, the inclusion of the complainant’s comments was necessary to avoid breaching the Code. ... It has never been an absolute requirement for newspapers to contact those who are about to feature in articles. This would be impractical for a number of reasons: often there will be no dispute about the facts, or the information will be innocuous; the volume of people mentioned in straightforward stories would make it impossible; and legitimate investigations might on some occasions be compromised by such a rule. However, in this case the newspaper made the wrong decision and the complaint was upheld.” B.     Codes of Practice 1.     The Editors’ Code of Practice 31 .     The PCC is responsible for ratifying and enforcing the Editors’ Code of Practice (“the Editors’ Code”). The Editors’ Code is regularly reviewed and amended as required. Clause 1 of the Editors’ Code provides, inter alia , that the press must take care not to publish inaccurate, misleading or distorted information, including pictures. 32 .     Clause 3 of the Editors’ Code deals with privacy. At the relevant time, it provided as follows: “3. *Privacy   i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual’s private life without consent. ii) It is unacceptable to photograph individuals in a private place without their consent. Note - Private places are public or private property where there is a reasonable expectation of privacy.” 33 .     Clause 10 of the Editors’ Code sets out provisions on clandestine recordings: “10 *Clandestine devices and subterfuge   i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent. ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.” 34 .     At the relevant time, the “public interest” was explained in the Editors’ Code as follows:   “There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest. 1. The public interest includes, but is not confined to: i) Detecting or exposing crime or serious impropriety. ii) Protecting public health and safety. iii) Preventing the public from being misled by an action or statement of an individual or organisation. 2. There is a public interest in freedom of expression itself. 3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served. 4. The PCC will consider the extent to which material is already in the public domain, or will become so. ...” 35 .     Paragraph 3 was amended in October 2009 to provide: “Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.” 36 .     The Editors’ Codebook accompanies the Editors’ Code and is intended to provide guidance as to compliance with the Code’s provisions. It underwent major revision in January 2011, providing updates on prior notification and “public interest”. As regards prior notification, it now explains: “There is wide agreement that prior notification of the subjects of stories ahead of publication, while often desirable, could not – and should not – be obligatory. It   would be impractical, often unnecessary, impossible to achieve, and could jeopardise legitimate investigations. Yet, at the same time, a failure to include relevant sides of the story can lead to inaccuracy and breach the Code. The PCC has set out guidance on how to square this circle: 1. If there is no doubt about the story’s truth, it is unlikely that a failure to approach those involved for comment prior to publication will lead to a breach of Clause 1 of the Code [on accuracy]; 2. Where information has come from a source (especially an anonymous one), it may be prudent to seek the ‘other side of the story’ before the article appears; ...” 37 .     As to the “public interest” test, the Codebook notes: “In judging publications’ claims that otherwise prohibited information or methods were justifiable in the public interest, both the Code and the PCC set high thresholds. The burden is on the editor to demonstrate fully how the public interest was served.” 38 .     It provides details of previous rulings of the PCC on the question of the “public interest” and identifies key questions as: “Was it reasonable to believe that publication or journalistic activity would have served the public interest? The PCC would require a full explanation showing that the grounds were genuine and sound in the circumstances. If clandestine methods, subterfuge, harassment or payments to criminals or witnesses are involved, could the information have been obtained by other means? Is the information in the public domain, or likely to become so? If children are involved, is the public interest in publication exceptional?” 2.     The Ofcom Broadcasting Code 39 .     Broadcasters are subject to the Ofcom Broadcasting Code (“the Ofcom Code”). Section 7 of the Ofcom Code deals with fairness and provides, inter alia : “7.9 Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that: ... anyone whose omission could be unfair to an individual or organisation has been offered an opportunity to contribute.” 40 .     Principle 8 of the Ofcom Code addresses the need to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes. C.     Remedies for publication of private information 41 .     Under English law, a number of remedies are available in cases of misuse of private information. An injunction can be sought to restrain publication of the private material. Damages are also available to compensate for the injury caused by any intrusive publication, including aggravated damages where additional features of the intrusion or the defendant’s post-publication conduct makes the original injury worse. An   alternative to damages is an account of the profits made by the defendant. The court can also order delivery-up of the offending material. 42 .     Further protection is offered by the Data Protection Act 1998, which makes provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. It sets out in a schedule eight data protection principles which must be observed by data controllers in the United Kingdom. These principles include the principles that personal data shall be processed fairly and lawfully; that personal data shall be obtained only for one or more specified and lawful purposes; that personal data shall be adequate, relevant and not excessive in relation to the purpose for which they are processed; that personal data shall be accurate and up to date; and that personal data shall be processed in accordance with the rights of data subjects under the Act. Further requirements are stipulated in respect of “sensitive personal data”, which includes information as to a person’s sexual life. 43 .     However, section 32(1) of the Act provides a “public interest” exemption from the data protection principles where information is processed for journalism purposes: “Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if— (a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material, (b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and (c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.” 44 .     Section 3 defines “the special purposes” as including the “purposes of journalism”. Section 32(2) provides that the exemption relates to the data protection principles, except the seventh data protection principle which sets out the need for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Section 32(3) provides that compliance with any code of practice is relevant to the assessment of whether there was a reasonable belief that publication would be in the public interest. 45 .     Section 13 of the Act entitles a data subject to apply for compensation where there has been a contravention of the requirements of the Act and section 14 allows him to apply for rectification, erasure or destruction of personal data. D.     Interim injunctions 46 .     The position as regards interim injunctions under English law was set out in the case of American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396). In particular, a claimant seeking an interim injunction was required to show that he had a “seriously arguable case” to be tried. Once this had been shown, it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages. If there were doubts as to the adequacy of a remedy in damages, the preservation of the status quo often prevailed, with the result that an interim injunction would be granted. 47 .     The position in cases engaging the right to freedom of expression was subsequently amended with the entry into force of the Human Rights Act 1998. Section 12 of the Act provides: “(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied— (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to— (a) the extent to which— (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.” 48 .     The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v.   Banerjee and others [2004] UKHL 44. Lord Nicholls of Birkenhead observed that: “15. When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The   concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘serious question to be tried’ or a ‘real prospect’ of success at the trial.” 49 .     He concluded that: “22. Section 12(3) makes the likelihood of success at the trial an essential element in the court’s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘sufficiently favourable’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.” 50 .     Subsequently, in Douglas & Ors v Hello! Ltd & Ors ([2005] EWCA Civ   595), the Court of Appeal noted: “258. Of course, as recently emphasised by the House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998.” E.     The House of Commons Culture, Media and Sport Committee 51 .     On 9 February 2010 the House of Commons Culture, Media and Sport Committee (“the Select Committee”) published a report on Press standards, privacy and libel (2nd Report of Session 2009-10, HC 362-I). The report was prepared following receipt of written submissions and the hearing of oral evidence from a number of stakeholders, including the applicant and the editor of the News of the World . A chapter of the report was dedicated to examining privacy and breach of confidence. As regards the evidence received on the need for a rule of pre-notification, the report noted: “82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World ’s intention to publish. Mr Myler [the editor of the News of the World ] told us that he and his colleagues at the newspaper were conscious of this: ‘we knew that probably Mr   Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction’.” 52 .     According to the evidence received by the Select Committee, journalists contacted the subjects of their articles prior to publication in the great majority of cases. However, there was some evidence before the Select Committee that editors sometimes took a calculated risk not to contact a subject because they knew or suspected that an injunction would be imposed in respect of an intended publication.The report noted: “91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.” 53 .     The Select Committee recommended that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception, and that guidance for journalists and editors on pre-notifying should be included in the Editors’ Codebook. 54 .     As to the need for a legally binding pre-notification requirement, the Select Committee concluded that: “93. ... a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a ‘public interest’ exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article   8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.” III.   RELEVANT INTERNATIONAL MATERIALS A.     Relevant Council of Europe texts 1. The Parliamentary Assembly of the Council of Europe 55 .     On 23 January 1970, the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a declaration on mass communication media and human rights. As regards the duty of the press to act responsibly, the declaration indicated that it would be desirable to put in place: “(a) professional training for journalists under the responsibility of editors and journalists; (b) a professional code of ethics for journalists ; this should cover inter alia such matters as accurate and well balanced reporting, rectification of inaccurate information, clear distinction between reported information and comments, avoidance of calumny, respect for privacy, respect for the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights; (c) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self-control by the press itself.” 56 .     The declaration also noted that there was an area in which the exercise of the right of freedom of expression might conflict with the right to privacy protected by Article 8, and that the exercise of the former right should not be allowed to destroy the existence of the latter. It observed that the right to privacy consisted essentially in the right to live one’s own life with a minimum of interference and concerned private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications and protection from disclosure of information given or received by the individual confidentially. The declaration also stated that the right to privacy afforded by Article 8 should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media, and that national legislation should guarantee this protection 57 .     On 26 June 1998 the Parliamentary Assembly adopted a further resolution, Resolution 1165, on the right to privacy, focusing on public figures. The Resolution noted that personal privacy was often invaded, even in countries with specific legislation to protect it, as people’s private lives had become a highly lucrative commodity for certain sectors of the media. It   continued: “8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression. 58 . &#x