Today’s judgment in the Max Mosley privacy case will confirm the media’s worst fears about publishing stories concerning the private lives of celebrities and other high profile individuals.

As Mr Justice Eady says clearly in his judgment, this is not a “landmark” decision. It does, however, confirm and build on recent UK decisions in cases brought by Naomi Campbell, Michael Douglas and Catherine Zeta-Jones, Prince Charles, Loreena McKennitt and J.K. Rowling. As Mr Justice Eady is the judge who is most likely to hear these types of cases, both at trial and on interim injunctions, the decision also gives further insight into the way he views the publication of these sorts of stories.

Today's ruling has set a high hurdle for the media. If they decide to publish such stories from now on, they do so at their peril. An individual’s personal life, and in particular their sex life, is inherently private. The press will need to have a robust public interest reason, such as the exposure of an illegal activity or the correction of misleading claims made previously by the individual, to justify publication. The judge seemed to suggest that even politicians will be entitled to a degree of privacy.

Mr Justice Eady decided that the only possible public interest in this case was if the Nazi role-play allegations were true. On the evidence, he found they were not. Additionally he indicated that, even if there had been a Nazi role-play element, this may only have justified disclosure to the FIA, to whom Mr Mosley is accountable, and not publication to the public.

This observation reflects what has been held in previous decisions regarding whether it was proportionate to publish the information to the audience it was published to. Whilst it may be proportionate to publish private information to a small group of people because there was a public interest justification in doing so, it is going to be far more difficult to find a public interest justification to publish private information to the world at large.

The court’s award of £60,000 in damages also takes privacy damages into a new league. The previous highest award was £14,600 to Michael Douglas and Catherine Zeta-Jones. However, what is of some comfort to the media is that Mr Justice Eady refused to award exemplary damages and gave a strong indication that exemplary damages awards cannot be made in these sorts of cases. In deciding this, he took into account the chilling effect on free speech that such an award would have.

Ultimately if the media are considering publishing these sorts of stories in future, the decision will come down to a risk analysis of whether the individual is likely to sue for infringement of privacy. If the story can be published without being hit with an injunction, it may be felt that the individual will consider that the damage has been done and to sue would just add more publicity to something the individual wished to keep private. Unfortunately for the media, there are more Mosleys out there who will wish to take on the media despite the reputational consequences of taking such matters to trial.

Niri Shan and Mark Dennis are media lawyers at Taylor Wessing LLP. Niri Shan is a member of The Times Law Panel

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