What to look out for in the Mosley privacy judgment

The European Court of Human Rights ruling.

Later today the European Court of Human Rights is expected to deliver judgment in the Max Mosley case.

As the judgment may be highly significant in the development of privacy law in the United Kingdom, it is important to be clear what questions the Court has actually been asked.

The background to this case is fairly well-known, but from a legal perspective the following facts are important.

The private sexual life of Mosley was invaded as part of a tabloid newspaper exercise. Information obtained from this intrusion was then published in a Sunday newspaper and video footage was posted on the newspaper's website. The High Court found that there was no public interest in this intrusion at all. The newspaper's attempt at claiming a public interest was unconvincing and, at best, shallow.

The consequence was that Mosley had had his right to private life wrongly and irrevocably interfered with for no good reason.

This was unlawful, as such misuse or wrongful disclosure of private information is a civil wrong in England and Wales as a consequence of Parliament's passing of the Human Rights Act 1998.

And unlike a person's reputation which can be vindicated by means of a claim for defamation, there is no sensible way a person's privacy can be restored. What this means is that there is a legal right which cannot actually be protected.

The High Court awarded Mosley damages of £60,000.

However, Mosley decided to take his case to the European Courts of Human Rights in Strasbourg, the guardian of the European Convention of Human Rights (not to be confused with the European Court of Justice in Luxembourg which superintends EU law). The basis of Mosley's complaint was that the United Kingdom does not provide for any legal remedy which adequately protects his right to privacy.

Mosley's case is as follows: newspapers contact the subjects of their stories some 99 per cent of the time before publication (a figure provided by Paul Dacre, editor of the Daily Mail, himself); the other 1 per cent of the time is because the newspaper believes it would face an injunction application so as to prevent wrongful publication; however, in that 1 per cent of cases, the High Court under section 12 of the Human Rights Act 1998 would be required to balance the right to privacy against the newspaper's right to free expression.

Accordingly, there would be no difference in 99 per cent of cases and in the other 1 per cent, the legislation is in place to ensure privacy does not automatically trump free expression.

The UK government should, Mosley submitted to the European Court of Human rights, therefore ensure that newspapers always contact the subjects of their stories before publication so that there can, when appropriate, be an application for a privacy injunction.

If the public interest in publication is stronger than the right to privacy in any given case, the injunction application would not succeed.

Against this claim, the newspaper industry point to the fact that to introduce such a requirement to notify a subject of a story that his or her privacy rights are to be invaded would require either the UK government to introduce legislation or for the courts to further develop the law.

They argue also from a general "freedom of the press" standpoint, saying that although it is good journalistic practice to notify a subject before publication, this should not be converted into a firm legal obligation backed by coercive sanctions for non-compliance. By providing an opportunity for the "rich and famous" to obtain an injunction, the contention of the newspapers is that one would be allowing people to buy themselves out of having their conduct scrutinised by a free and vigorous press necessary in a free society.

It is not clear which way the Court will decide the case. It may even rule on the narrow point of admissibility alone, leaving the substantive issues untouched. And any decision will probably be appealed by the losing party to the Grand Chamber for a further hearing.

If Mosley is correct that one must have an effective right to privacy, especially as in his case when the newspaper cannot establish at court any public interest in interfering with that right, then there is a difficult question of how the legal system should protect him. Are damages really an adequate remedy?

And then there are further questions.

Would obliging newspapers to contact subjects in advance of publication really be an onerous interference with their right to free expression, given that such contact is the norm and the newspapers anyway have protection under the Human Rights Act for publications in the public interest?

If so, how exactly would such an obligation be enforced?

And, ultimately, would the UK government be compelled to again to change the law in that one way which would be even more unpopular with the tabloids than giving prisoners the vote?

I will be posting my analysis of the Mosley judgment here later today.

In the meantime, the following is essential background reading on the case:

-- The agreed statement of facts and issues.

-- David Pannick's brilliant speech to the Court on behalf of Mosley.

-- The submissions of the (perhaps wrongly called) Media Lawyers Association opposing Mosley (pdf).

-- INFORRM's account of the parties' submissions.

UPDATE: Mosley has lost his bid to force newspapers to warn individuals ahead of publication. More to follow...

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Our union backed Brexit, but that doesn't mean scrapping freedom of movement

We can only improve the lives of our members, like those planning stike action at McDonalds, through solidarity.

The campaign to defend and extend free movement – highlighted by the launch of the Labour Campaign for Free Movement this month – is being seen in some circles as a back door strategy to re-run the EU referendum. If that was truly the case, then I don't think Unions like mine (the BFAWU) would be involved, especially as we campaigned to leave the EU ourselves.

In stark contrast to the rhetoric used by many sections of the Leave campaign, our argument wasn’t driven by fear and paranoia about migrant workers. A good number of the BFAWU’s membership is made up of workers not just from the EU, but from all corners of the world. They make a positive contribution to the industry that we represent. These people make a far larger and important contribution to our society and our communities than the wealthy Brexiteers, who sought to do nothing other than de-humanise them, cheered along by a rabid, right-wing press. 

Those who are calling for end to freedom of movement fail to realise that it’s people, rather than land and borders that makes the world we live in. Division works only in the interest of those that want to hold power, control, influence and wealth. Unfortunately, despite a rich history in terms of where division leads us, a good chunk of the UK population still falls for it. We believe that those who live and work here or in other countries should have their skills recognised and enjoy the same rights as those born in that country, including the democratic right to vote. 

Workers born outside of the UK contribute more than £328 million to the UK economy every day. Our NHS depends on their labour in order to keep it running; the leisure and hospitality industries depend on them in order to function; the food industry (including farming to a degree) is often propped up by their work.

The real architects of our misery and hardship reside in Westminster. It is they who introduced legislation designed to allow bosses to act with impunity and pay poverty wages. The only way we can really improve our lives is not as some would have you believe, by blaming other poor workers from other countries, it is through standing together in solidarity. By organising and combining that we become stronger as our fabulous members are showing through their decision to ballot for strike action in McDonalds.

Our members in McDonalds are both born in the UK and outside the UK, and where the bosses have separated groups of workers by pitting certain nationalities against each other, the workers organised have stood together and fought to win change for all, even organising themed social events to welcome each other in the face of the bosses ‘attempts to create divisions in the workplace.

Our union has held the long term view that we should have a planned economy with an ability to own and control the means of production. Our members saw the EU as a gravy train, working in the interests of wealthy elites and industrial scale tax avoidance. They felt that leaving the EU would give the UK the best opportunity to renationalise our key industries and begin a programme of manufacturing on a scale that would allow us to be self-sufficient and independent while enjoying solid trading relationships with other countries. Obviously, a key component in terms of facilitating this is continued freedom of movement.

Many of our members come from communities that voted to leave the EU. They are a reflection of real life that the movers and shakers in both the Leave and Remain campaigns took for granted. We weren’t surprised by the outcome of the EU referendum; after decades of politicians heaping blame on the EU for everything from the shape of fruit to personal hardship, what else could we possibly expect? However, we cannot allow migrant labour to remain as a political football to give succour to the prejudices of the uninformed. Given the same rights and freedoms as UK citizens, foreign workers have the ability to ensure that the UK actually makes a success of Brexit, one that benefits the many, rather than the few.

Ian Hodon is President of the Bakers and Allied Food Workers Union and founding signatory of the Labour Campaign for Free Movement.