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Judge refuses Mosley video injunction because of internet dissemination

A High Court judge has refused to issue an injunction stopping a newspaper publishing a sex video because it is already published elsewhere on the internet. Mr Justice Eady refused the injunction despite finding the material "intrusive and demeaning".09 Apr 2008

The News of the World (NotW) successfully defended an action to prevent it publishing a sex video on its web site. The video had been published last week but was taken down a day later pending the hearing.

The video showed Max Mosley, the president of Formula One organisation the FIA, with five alleged prostitutes.

The newspaper alleged that the sex sessions had a Nazi element. It said that participants wore German military uniforms, that German was spoken and that mock head lice inspections took place. Mosley's father was the wartime British fascist leader Oswald Mosley.

Mosley sought a High Court injunction preventing the publication of the video and is pursuing a case for breach of privacy against the publishers of the NotW.

Mr Justice Eady said that there was little point in serving an injunction preventing the video's publication because it had already spread all around the internet and was available to view elsewhere.

"I have come to the conclusion that the material is so widely accessible that an order in the terms sought would make very little practical difference," he said.

"One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst."

The judge ruled that he would not prevent publication despite saying that the video is both unpleasant and intrusive.

"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," he said.

Steven James of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the judge in this case was applying an already-established principle.

"The material had been so widely circulated that there was nothing much left to injunct. This principle has been engrained in English law since the famous 'Spycatcher' case, where the Attorney General failed to prevent publication of Peter Wright's book on the Secret Service because the material was so widely available in other jurisdictions," he said.

"The grant of an injunction is entirely at the discretion of the Court and it is therefore not surprising that Mr Justice Eady refused to grant one where to do so would be futile in practice," he said.