What the Mosley privacy decision really means

Where does this leave effective protection for privacy?

This morning the European Court of Human Rights rejected Max Mosley's contention that the United Kingdom should ensure that those who are about to have their privacy intruded upon by the media be notified in advance. (There is an excellent legal analysis of the decision already at the INFORRM website by Hugh Tomlinson QC.)

There are three main points of significance to this decision.

First, the substantive English law in respect of the misuse of private information remains unchanged. Mosley would still be able to bring his case and the News of the World would still have to pay substantial damages and costs. There is nothing in this decision that actually changes the law as it stands.

The unhappy consequence of the decision is that in situations like the case of Mosley, where there was no public interest in the intrusion, the victim's only remedy will still be to bring an action for damages after their privacy has been irretrievably lost.

This means that only individuals as wealthy and resilient as Mosley have a remedy for the breach of their legal rights. The cheaper, speedier and effective remedy of an injunction, which would allow the enforcement of privacy rights by those not rich and famous, has been held by the Strasbourg Court to be not a requirement.

So, contrary to the misleading spin of the mainstream media about how "prior notification" would favour the rich and famous, continuing with the status quo means that expensive and lengthy damages actions for privacy can only really be threatened or taken by someone of the attributes of a Max Mosley.

Second, this decision may not be the final word in this case. It is open to Mosley to appeal to the Grand Chamber. Indeed, had Mosley won this round, then the UK government may have made such an appeal. If so, this is a matter that will not go away and, just as no one could predict how the Court would rule today, no one can predict confidently what the Grand Chamber may decide, and then there would then be no higher appeal for any party.

Third, it leaves open the difficult question of what protection should there be in the meantime for individuals who face having their right to privacy irrecoverably lost for no good reason.

Such intrusions, without a public-interest justification, will continue to be an infringement of an individual's legitimate right to a private life. The "Hackgate" scandal has shown that tabloids are indifferent to the legal and voluntary restrictions to their intrusions. The commercial desire to publish the private details of individuals when there is no public interest is not a serious "free-expression issue". Obliging the press to have a public-interest justification before publishing such information cannot seriously be called censorship: it is simply decency and fair play. In 99 per cent of cases, the press contacts the subjects of stories in advance, and that is not "censorship" either.

However, given the welcome and impressive development of privacy law since the introduction of the Human Rights Act 1998, today's adverse decision is only mild setback for those seeking a more civilized and respectful society.

 

David Allen Green is legal correspondent of the New Statesman and a practising media lawyer.

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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There's just one future for the left: Jeremy Corbyn

Labour's new leader is redefining Labour for the 21st century, argues Liam Young. 

The politics of the resurgent left comes down to one simple maxim: people are sick and tired of establishment politics. When one makes this statement it is usually met with some form of disapproval. But it is important to realise that there are two different types of people that you have this conversation with.

First there are the people I surround myself with in a professional environment: political types. Then there are the people I surround myself with socially: normal people.

Unsurprisingly the second category is larger than the first and it is also more important. We may sit on high horses on Twitter or Facebook and across a multitude of different media outlets saying what we think and how important what we think is, but in reality few outside of the bubble could care less.

People who support Jeremy Corbyn share articles that support Jeremy Corbyn - such as my own. People who want to discredit Jeremy Corbyn share articles that discredit Jeremy Corbyn - like none of my own. It is entirely unsurprising right? But outside of this bubble rests the future of the left. Normal people who talk about politics for perhaps five minutes a day are the people we need to be talking to, and I genuinely believe that Labour is starting to do just that.

People know that our economy is rigged and it is not just the "croissant eating London cosmopolitans" who know this. It is the self-employed tradesman who has zero protection should he have to take time off work if he becomes ill. It is the small business owner who sees multi-national corporations get away with paying a tiny fraction of the tax he or she has to pay. And yes, it is the single mother on benefits who is lambasted in the street without any consideration for the reasons she is in the position she is in. And it is the refugee being forced to work for less than the minimum wage by an exploitative employer who keeps them in line with the fear of deportation. 

The odds are stacked against all normal people, whether on a zero hours contract or working sixty hours a week. Labour has to make the argument from the left that is inclusive of all. It certainly isn’t an easy task. But we start by acknowledging the fact that most people do not want to talk left or right – most people do not even know what this actually means. Real people want to talk about values and principles: they want to see a vision for the future that works for them and their family. People do not want to talk about the politics that we have established today. They do not want personality politics, sharp suits or revelations on the front of newspapers. This may excite the bubble but people with busy lives outside of politics are thoroughly turned off by it. They want solid policy recommendations that they believe will make their lives better.

People have had enough of the same old, of the system working against them and then being told that it is within their interest to simply go along with it.  It is our human nature to seek to improve, to develop. At the last election Labour failed to offer a vision of future to the electorate and there was no blueprint that helped people to understand what they could achieve under a Labour government. In the states, Bernie Sanders is right to say that we need a political revolution. Here at home we've certainly had a small one of our own, embodying the disenchantment with our established political discourse. The same-old will win us nothing and that is why I am firmly behind Jeremy Corbyn’s vision of a new politics – the future of the left rests within it. 

Liam Young is a commentator for the IndependentNew Statesman, Mirror and others.