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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Will anyone sing for the Brexiters?

The five acts booked to perform at pro-Brexit music festival Bpop Live are down to one.

Do Brexiters like music too? If the lineup of Bpoplive (or more accurately: “Brexit Live presents: Bpop Live”) is anything to go by, the answer is no. Ok, former lineup.

The anti-Europe rally-cum-music festival has already been postponed once, after the drum and bass duo Sigma cancelled saying they “weren’t told Bpoplive was a political event”.

But then earlier this week the party was back on, set for Sunday 19 June, 4 days before the referendum, and a week before Glastonbury, saving music lovers a difficult dilemma. The new lineup had just 5 acts: the 90s boybands East17 and 5ive, Alesha Dixon of Britain’s Got Talent and Strictly Come Dancing fame, family act Sister Sledge and Gwen Dickey of Rose Royce.

Unfortunately for those who have already shelled out £23 for a ticket, that 5 is now down to 1. First to pull out were 5ive, who told the Mirror that “as a band [they] have no political allegiances or opinions for either side.” Instead, they said, their “allegiance is first and foremost to their fans”. All 4our of them.

Next to drop was Alesha Dixon, whose spokesperson said that that she decided to withdraw when it became clear that the event was to be “more of a political rally with entertainment included” than “a multi-artist pop concert in a fantastic venue in the heart of the UK”. Some reports suggested she was wary of sharing a platform with Nigel Farage, though she has no qualms about sitting behind a big desk with Simon Cowell

A spokesperson for Sister Sledge then told Political Scrapbook that they had left the Brexit family too, swiftly followed by East 17 who decided not to stay another day.

So, it’s down to Gwen Dickey.

Dickey seems as yet disinclined to exit the Brexit stage, telling the Mirror: "I am not allowed to get into political matters in this lovely country and vote. It is not allowed as a American citizen living here. I have enough going on in my head and heart regarding matters in my own country at this time. Who will be the next President of the USA is of greater concern to me and for you?"

With the event in flux, it doesn’t look like the tickets are selling quickly.

In February, as David Cameron’s EU renegotiation floundered, the Daily Mail ran a front-page editorial asking “Who will speak for England?” Watch out for tomorrow’s update: “Who will sing for the Brexiters?”

I'm a mole, innit.