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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Why Nigel Farage is hoovering up all the women I know

Beware young fogeys.

I can’t remember where I was when I first worked out that I was older than Nigel Farage. You’d think after that bombshell went off, you’d still be able to locate the crater. Anyway, there it is: the cut-price little Oswald Mosley is about a year younger than me.

I mention this not because I want to dwell on the nasty piece of shit, but because I’ve been having to face, at one remove, so to speak, the problem of young fogeyism. It seems to be all around. And not only that, it’s hoovering up women I know.

The first time it happened was with B——. She was going to come round last weekend, but then emailed to cancel the day before, because she was going to watch rugby – apparently there’s some kind of tournament on, but it never seems to end – with her boyfriend. How ghastly, I said, or words to that effect; I’d rather die.

She then made the Category One mistake of saying, “Rugby, cricket, all the same to me,” with a cheeky little “x” at the end of it.

I replied thus: Rugby is a violent and brutal game (the coy term is “contact sport”, which means you get to – indeed, are encouraged to – injure the opposing team as often as you can, in the absence of any other tactic) loved by fascists, or, at best, those with suspicious ideas about the order of society with which I doubt you, B——, would wish to be aligned. Also, only people of immense bulk and limited intelligence can play it. Cricket is a game of deep and subtle strategy, capable of extraordinary variation, which is appreciated across the class spectrum, and is also so democratically designed that even the less athletic – such as I – can play it. [I delete here, for your comfort, a rant of 800 or so words in which I develop my theory that cricket is a bulwark against racism, and rugby, er, isn’t.] Both are dismayingly over-represented at the national level by ex-public-school boys; cricket as a matter of historical accident (the selling-off of school playing fields under Thatcher and Major), rugby as a matter of policy. Have a lovely day watching it.

Two things to note. 1) This woman is not, by either birth or ancestry, from a part of the world where rugby is played. 2) You wouldn’t have thought she was one of nature’s rugby fans, as she considers that Jeremy Corbyn is a good person to be leading the Labour Party. (True, thousands of Tories think the same thing, but for completely different reasons.)

That’s Exhibit A. Exhibit B is my old friend C——, whom I haven’t seen for about five years or so but suddenly pops up from the past to say hello, how about a drink? I always liked C—— very much, largely because she’s very funny and, let’s be frank about this, something of a sexpot. She seems keen to bring someone over with her who, reading between the lines like a modern-day Sherlock Holmes, I deduce to be her latest partner. The thing is, she says, she’s not sure he can come, because he might be going beagling.

Beagling?

Well, she does come round (alone, thank goodness) and she’s looking even better than I remember, and is even funnier, too, and she shows me some of the pictures she has put up on her profile page on some dating site, and they’re not the kind of photographs this magazine will ever publish, let’s leave it at that. (One of them even moves.) And, as it turns out – and it doesn’t really surprise me that much – the young beagler she is seeing is a good thirty years-plus younger than she, and his photograph shows him to be all ears and curls, like a transporter mix-up between Prince Charles and the young David Gower. Like B——’s young man, he is not called Gervaise or Peregrine but may as well be.

What on Earth is going on here? Can we blame Farage? I can understand the pull of the void, but this is getting ridiculous. Do they not quite understand what they’re doing? Actually, C—— does, because she’s had her eyes open all her life, and B——, her youth and political idealism notwithstanding, didn’t exactly come down in the last shower, either.

So what is it with these young wannabe toffs – one of whom isn’t even rich? “You’d like him,” C—— says, but I’m not so sure. People who go beagling sure as hell don’t like me, and I see no reason not to return the favour.

Well, I can’t thrash this out here. C—— leaves, but not before giving me the kind of kiss that makes me wish Binkie Beagley, or whatever his name is, would just wink out of existence.

Nicholas Lezard is a literary critic for the Guardian and also writes for the Independent. He writes the Down and Out in London column for the New Statesman.

This article first appeared in the 16 February 2017 issue of the New Statesman, The New Times