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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If the left leaves it to David Cameron, we'll have Brexit for sure

Only an upbeat, leftwing case can keep Britain in the European Union.

After months flapping and hesitation, and with much of the reporting and detail so dull that it has barely penetrated the consciousness of even those who speak the language of ‘directives’ and treaty provisions, the EU referendum is upon us. With David Cameron signalling concrete outcomes for negotiations, we seem to be set for June, whatever the protests from opposition parties about the date being too close to local and national elections.  

Cameron’s deal, whose most substantive element consists of denying in-work benefits to European citizens, exemplifies the kind of debate that Conservative strategists want to create: a tedious, labyrinthine parochialism, blending the EU’s procedural dullness with an unquestioned mythology of the little Englander. Try actually reading the various letters, let alone the draft decisions, that Cameron extracted from Donald Tusk, and the agreement turns to putty in your head. But in summary, what Cameron is negotiating is designed to keep the EU debate as an in-house affair within the right, to continue and formalise the framing of the debate as between two strains of anti-migrant sentiment, both of them backed by big business.

The deal may be reactionary, but it is also mediocre in its scope and impact. The worries that many of us had in the leftwing pro-In camp, that Cameron’s deal would push back freedom of movement and working and environmental protections so far that we would be unable to mobilise for continued membership of the EU, can now be put to bed. Quite the opposite of allowing Cameron's narrative to demoralise us, the left must now seize an opportunity to put imagination and ideas back at the heart of the referendum debate.

The British political landscape in which that debate will play out is a deceptively volatile environment. Party allegiance is at a nearly all time low. Inequality is growing, and so is the gap between attitudes. The backbone of the UKIP vote – and much of the Out vote – will come from a demographic that, sometimes impoverished by the legacy of Thatcherite economic policy, sees itself as left behind by migration and change. On top of the class war, there is a kind of culture war underway in today’s Britain: on one side those who see LGBT rights, open borders and internationalism as the future; on the other side, those who are scared of the future. About the only thing these groups have in common with one another is their anti-establishment instincts, their total disdain and mistrust of politics as usual.

The only political movement to have broken through the fog of cynicism and disillusionment in British politics has come from the left. Jeremy Corbyn’s rise to the leadership of the Labour has unleashed something new - and while large parts of the press, and some Labour backbenchers, have portrayed this rise as a crusade of the “croissant eating” metropolitan elite, the reality is very different. The rise of the new Labour left has given voice to a renewed socialist and working class politics; its explicitly radical, outsider approach has given it traction across the social divides – among the young looking for a future, and among Labour’s old base. 

A politics of hope – however vague that term might sound – is the only real answer to the populist Euroscepticism that the Out campaign will seek to embody. Radical politics, that proposes an alternative narrative to the scapegoating of migrants, has to find voice in the course of this referendum campaign: put simply, we need to persuade a minimum wage worker that they have more in common with a fellow Polish migrant worker than they do with their employer; we need to persuade someone on a social housing waiting list should blame the privatisation of the housing market, not other homeless families. Fundamentally, the real debate to be had is about who the public blames for social injustice: that is a question which only the left can satisfactorily answer.

The outsider-led volatility of British politics gives the EU referendum a special kind of unpredictability. For voters who have lost faith in the political establishment – and who often have little materially to lose from Brexit – the opportunity to deliver a blow to David Cameron this summer will be tempting. The almost consciously boring, business-dominated Britain Stronger In Europe campaign makes a perfect target for disenfranchised public sentiment, its campaigning style less informed by a metropolitan elite than by the landed gentry. Its main weapons – fear, danger and uncertainty – will work on some parts of the electorate, but will backfire on others, much as the Better Together campaign did in the Scottish referendum.

Last night, Another Europe is Possible held a launch meeting of about a hundred people in central London - with the backing of dozens of MPs, campaigners and academics across the country. It will aim to provide a radical, left wing voice to keep Britain in the EU.

If Britain votes to leave the EU in June, it will give the Right a mandate for a renewed set of attacks on workers’ rights, environmental protections, migrants and freedom of movement. But without an injection of idealism and radicalism,  an In vote will be a mandate for the status quo - at home and in Brussels. In order to seize the real potential of the referendum, the left has to approach the campaign with big ideas and demands. And we have to mobilise.