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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Donald Trump ushers in a new era of kakistocracy: government by the worst people

Trump will lead the whitest, most male cabinet in memory – a bizarre melange of the unqualified and the unhinged.

“What fills me with doubt and dismay is the degradation of the moral tone,” wrote the American poet James Russell Lowell in 1876, in a letter to his fellow poet Joel Benton. “Is it or is it not a result of democracy? Is ours a ‘government of the people by the people for the people’, or a kakistocracy rather, for the benefit of knaves at the cost of fools?”

Is there a better, more apt description of the incoming Trump administration than “kakistocracy”, which translates from the Greek literally as government by the worst people? The new US president, as Barack Obama remarked on the campaign trail, is “uniquely unqualified” to be commander-in-chief. There is no historical analogy for a President Trump. He combines in a single person some of the worst qualities of some of the worst US presidents: the Donald makes Nixon look honest, Clinton look chaste, Bush look smart.

Trump began his tenure as president-elect in November by agreeing to pay out $25m to settle fraud claims brought against the now defunct Trump University by dozens of former students; he began the new year being deposed as part of his lawsuit against a celebrity chef. On 10 January, the Federal Election Commission sent the Trump campaign a 250-page letter outlining a series of potentially illegal campaign contributions. A day later, the head of the non-partisan US Office of Government Ethics slammed Trump’s plan to step back from running his businesses as “meaningless from a conflict-of-interest perspective”.

It cannot be repeated often enough: none of this is normal. There is no precedent for such behaviour, and while kakistocracy may be a term unfamiliar to most of us, this is what it looks like. Forget 1876: be prepared for four years of epic misgovernance and brazen corruption. Despite claiming in his convention speech, “I alone can fix it,” the former reality TV star won’t be governing on his own. He will be in charge of the richest, whitest, most male cabinet in living memory; a bizarre melange of the unqualified and the unhinged.

There has been much discussion about the lack of experience of many of Trump’s appointees (think of the incoming secretary of state, Rex Tillerson, who has no background in diplomacy or foreign affairs) and their alleged bigotry (the Alabama senator Jeff Sessions, denied a role as a federal judge in the 1980s following claims of racial discrimination, is on course to be confirmed as attorney general). Yet what should equally worry the average American is that Trump has picked people who, in the words of the historian Meg Jacobs, “are downright hostile to the mission of the agency they are appointed to run”. With their new Republican president’s blessing, they want to roll back support for the poorest, most vulnerable members of society and don’t give a damn how much damage they do in the process.

Take Scott Pruitt, the Oklahoma attorney general selected to head the Environmental Protection Agency (EPA). Pruitt describes himself on his LinkedIn page as “a leading advocate against the EPA’s activist agenda” and has claimed that the debate over climate change is “far from settled”.

The former neurosurgeon Ben Carson is Trump’s pick for housing and urban development, a department with a $49bn budget that helps low-income families own homes and pay the rent. Carson has no background in housing policy, is an anti-welfare ideologue and ruled himself out of a cabinet job shortly after the election. “Dr Carson feels he has no government experience,” his spokesman said at the time. “He’s never run a federal agency. The last thing he would want to do was take a position that could cripple the presidency.”

The fast-food mogul Andrew Puzder, who was tapped to run the department of labour, doesn’t like . . . well . . . labour. He prefers robots, telling Business Insider in March 2016: “They’re always polite . . . They never take a vacation, they never show up late, there’s never a slip-and-fall, or an age, sex or race discrimination case.”

The billionaire Republican donor Betsy DeVos, nominated to run the department of education, did not attend state school and neither did any of her four children. She has never been a teacher, has no background in education and is a champion of school vouchers and privatisation. To quote the education historian Diane Ravitch: “If confirmed, DeVos will be the first education secretary who is actively hostile to public education.”

The former Texas governor Rick Perry, nominated for the role of energy secretary by Trump, promised to abolish the department that he has been asked to run while trying to secure his party’s presidential nomination in 2011. Compare and contrast Perry, who has an undergraduate degree in animal science but failed a chemistry course in college, with his two predecessors under President Obama: Dr Ernest Moniz, the former head of MIT’s physics department, and Dr Steven Chu, a Nobel Prize-winning physicist from Berkeley. In many ways, Perry, who spent the latter half of 2016 as a contestant on Dancing with the Stars, is the ultimate kakistocratic appointment.

“Do Trump’s cabinet picks want to run the government – or dismantle it?” asked a headline in the Chicago Tribune in December. That’s one rather polite way of putting it. Another would be to note, as the Online Etymology Dictionary does, that kakistocracy comes from kakistos, the Greek word for “worst”, which is a superlative of kakos, or “bad”, which “is related to the general Indo-European word for ‘defecate’”.

Mehdi Hasan has rejoined the New Statesman as a contributing editor and will write a fortnightly column on US politics

Mehdi Hasan is a contributing writer for the New Statesman and the co-author of Ed: The Milibands and the Making of a Labour Leader. He was the New Statesman's senior editor (politics) from 2009-12.

This article first appeared in the 19 January 2016 issue of the New Statesman, The Trump era