UK: Max Mosley’s European Privacy Law Fight

Last Updated: 3 February 2011
Article by Nick Armstrong

Former FIA head Max Mosley's current application to the European Court of Human Rights is not going to change much for those working in television.

He is attempting to change the English law of privacy to make it obligatory for the media, specifically the tabloid press in practice, to give advance notice to the subject or 'victim' of a forthcoming article.

Of course, under the Ofcom Broadcasting Code (and its predecessors), that has been the norm for many years. It has long been a key difference between broadcasting and press regulation, that newspapers are under no obligation to give prior notice whereas broadcasters must give an individual or company a fair and informed opportunity to comment and contribute in advance.

Mosley's application to the ECHR on 11 January 2011 arises from his success in 2008 against The News of the World. The High Court found in his favour over a front page article and pictures about his activities with prostitutes in a London flat. Mosley was awarded Ł60,000 damages.

He now seeks to show that in allowing newspaper to publish high intrusive and damaging stories without any form of prior notification to the subjects, the UK is in breach of its duties under Human Rights legislation.

Newspapers do in fact, in practice, often notify their "victims" in advance because the comments and input thereby obtained will allow for a more detailed and ultimately interesting article.

Additionally, if the article contains defamatory statements, the rules laid down by the Court following the Reynolds case mean that an additional defence may protect the publisher/broadcaster if (among other things) a potential complainant has been offered an appropriate opportunity in advance to contribute and respond to allegations being made.

However, there remains a category of case, often involving very prominent celebrities engaged in very sensitive types of conduct, where a newspaper will seek to protect its exclusivity and also avoid the potential loss of the story by reason of the celebrity obtaining an emergency injunction, by giving no notice at all. In some cases, a first edition is prepared with a dummy front page, with the actual "exclusive" only appearing in the early hours of Sunday in subsequent editions, too late for the competition to copy or for a complainant to find a Judge.

In the argument on behalf of Mosley before the European Court of Human Rights, his QC Lord Pannick suggested that it is a problem which is particularly acute in this country. He said "why such journalistic intrusion into the sex lives of the victims should be so popular in the UK when it is a phenomenon unknown in its intensity elsewhere in Europe would, I think, require a psychological study... It is a curious paradox that in a society which has become increasingly tolerant, and rightly so, on matters of sexual freedom, a society that has increasingly valued the right to personal privacy on sexual matters, that the News of the World should, like some journalistic Taliban, be able to insist on forcing its way into the bedrooms of consenting adults, and frustrate the rule of law by preventing independent judges from protecting the right to private life."

Having considered the "uniquely intrusive nature" of the UK tabloid press, Lord Pannick QC added "The UK does have a positive obligation under the Human Rights Convention to provide adequate procedures to ensure effective remedies by way of injunction....the UK has failed in its duty".

The opposing case, on behalf of the UK Government, was that there was a sensitive balance to be drawn between the two relevant articles of Human Rights Convention: Article 8 (the right to private and family life) and Article 10 (the right to freedom of expression).

Opponents of Mr Mosley's application have argued that the "prior notification" requirement would place an undue fetter on the press. The coverage over the last year or two by the Telegraph of MPs expenses provides a theoretical example: if there had existed a legal obligation of prior notification, the Telegraph would have had to notify each and every politician several days in advance about the proposed allegations of expense abuse. The additional complication and cost of that step, plus the likely proliferation of attempts by various MPs (perhaps the most culpable) to obtain injunctions, could have severely fettered what has turned out to be a very important piece of investigative journalism. The complexity and cost of the task might even deterred The Telegraph from embarking on the investigation in the first place - a classic instance (say critics) of the potential chilling effect of what Mosley is trying to achieve.

The European Court of Human Rights is unlikely to give its decision for several months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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