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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Senior Labour and Liberal Democrat politicians call for a progressive alliance

As Brexit gets underway, opposition grandees urge their parties – Labour, Lib Dems, the SNP and Greens – to form a pact.

A number of senior Labour and opposition politicians are calling for a cross-party alliance. In a bid to hold the Conservative government to account as Brexit negotiations kick off, party grandees are urging their leaders to put party politics to one side and work together.

The former Labour minister Chris Mullin believes that “the only way forward” is “an eventual pact between Labour, the Liberal Democrats and the Greens not to oppose each other in marginal seats”. 

 “Given the loss of Scotland,it will be difficult for any party that is not the Conservative party to form a government on its own in the foreseeable future," Mullin argues, but he admits, “no doubt tribalists on both sides will find this upsetting” and laments that, “it may take three or four election defeats for the penny to drop”.

But there are other Labour and Liberal grandees who are envisaging such a future for Britain’s progressive parties.

The Lib Dem peer and former party leader Ming Campbell predicts that “there could be some pressure” after the 2020 election for Labour MPs to look at “SDP Mark II”, and reveals, “a real sense among the left and the centre-left that the only way Conservative hegemony is going to be undermined is for a far higher degree of cooperation”.

The Gang of Four’s David Owen, a former Labour foreign secretary who co-founded the SDP, warns Labour that it must “face up to reality” and “proudly and completely coherently” agree to work with the SNP.

“It is perfectly legitimate for the Labour party to work with them,” he tells me. “We have to live with that reality. You have to be ready to talk to them. You won’t agree with them on separation but you can agree on many other areas, or you certainly should be trying.”

The Labour peer and former home secretary Charles Clarke agrees that Labour must “open up an alliance with the SNP” on fighting for Britain to remain in the single market, calling it “an opportunity that’s just opened”. He criticises his party for having “completely failed to deal with how we relate to the SNP” during the 2015 election campaign, saying, “Ed Miliband completely messed that up”.

“The SNP will still be a big factor after the 2020 general election,” Clarke says. “Therefore we have to find a way to deal with them if we’re interested in being in power after the election.”

Clarke also advises his party to make pacts with the Lib Dems ahead of the election in individual constituencies in the southwest up to London.

“We should help the Lib Dems to win some of those seats, a dozen of those seats back from the Tories,” he argues. “I think a seat-by-seat examination in certain seats which would weaken the Tory position is worth thinking about. There are a few seats where us not running – or being broadly supportive of the Lib Dems – might reduce the number of Tory seats.”

The peer and former Lib Dem leader Paddy Ashdown agrees that such cooperation could help reduce the Tory majority. When leader, he worked informally in the Nineties with then opposition leader Tony Blair to coordinate their challenge to the Conservative government.

“We’re quite like we were in 1992 when Tony Blair and I started working together but with bells on,” Ashdown tells me. “We have to do something quite similar to what Blair and I did, we have to create the mood of a sort of space, where people of an intelligent focus can gather – I think this is going to be done much more organically than organisationally.”

Ashdown describes methods of cooperation, including the cross-party Cook-Maclennan Agreement on constitutional reform, uniting on Scottish devolution, a coordinated approach to PMQs, and publishing 50 seats in the Daily Mirror before the 1997 election, outlining seats where Labour and Lib Dem voters should tactically vote for one another to defeat Tory candidates.

“We created the climate of an expectation of cooperation,” Ashdown recalls. Pursuing the spirit of this time, he has set up a movement called More United, which urges cross-party support of candidates and campaigns that subscribe to progressive values.

He reveals that that “Tory Central Office are pretty hostile to the idea, Mr Corbyn is pretty hostile to the idea”, but there are Conservative and Labour MPs who are “talking about participating in the process”.

Indeed, my colleague George reveals in his report for the magazine this week that a close ally of George Osborne has approached the Lib Dem leader Tim Farron about forming a new centrist party called “The Democrats”. It’s an idea that the former chancellor had reportedly already pitched to Labour MPs.

Labour peer and former cabinet minister Tessa Jowell says this is “the moment” to “build a different kind of progressive activism and progressive alliance”, as people are engaging in movements more than parties. But she says politicians should be “wary of reaching out for what is too easily defined as an elite metropolitan solution which can also be seen as simply another power grab”.

She warns against a “We’re going to have a new party, here’s the board, here’s the doorplate, and now you’re invited to join” approach. “Talk of a new party is for the birds without reach and without groundedness – and we have no evidence of that at the moment.”

A senior politician who wished not to be named echoes Jowell’s caution. “The problem is that if you’re surrounded by a group of people who think that greater cooperation is necessary and possible – people who all think the same as you – then there’s a terrible temptation to think that everyone thinks the same as you,” they say.

They warn against looking back at the “halcyon days” of Blair’s cooperation with the Lib Dems. “It’s worth remembering they fell out eventually! Most political marriages end in divorce, don’t they?”

Anoosh Chakelian is senior writer at the New Statesman.