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.)

Getty
Show Hide image

Election 2017: The 50 Labour MPs most at risk of losing their seats

Dozens of Labour MPs are at risk of losing their seats on June 8. Here are the 50 sitting MPs most at risk. 

Labour MPs representing marginal seats are at risk of losing their seats should their party's low polling numbers translate into electoral reality. Here's a full list of the 50 sitting MPs with the smallest majorities. 

Chris Matheson – City of Chester
Majority: 93 (0.2 per cent of total turnout)
Second place in 2015: Conservatives

Rupa Huq – Ealing Central & Acton
Majority: 274 (0.5 per cent)
Second place in 2015: Conservatives

Albert Owen – Ynys Mon
Majority: 229 (0.6 per cent)
Second place in 2015: Plaid Cymru

Ruth Cadbury – Brentford & Isleworth
Majority: 465 (0.9 per cent)
Second place in 2015: Conservatives

Margaret Greenwood – Wirral West
Majority: 417 (0.9 per cent)
Second place in 2015: Conservatives

Holly Lynch – Halifax
Majority: 428 (1 per cent)
Second place in 2015: Conservatives

Daniel Zeichner – Cambridge
Majority: 599 (1.1 per cent)
Second place in 2015: Liberal Democrats

Wes Streeting – Ilford North
Majority: 589 (1.2 per cent)
Second place in 2015: Conservatives

Paul Farrelly – Newcastle-under-Lyme
Majority: 650 (1.5 per cent)
Second place in 2015: Conservatives

John Woodcock – Barrow & Furness
Majority: 795 (1.8 per cent)
Second place in 2015: Conservatives

Tulip Siddiq – Hampstead & Kilburn
Majority: 1138 (2.1 per cent)
Second place in 2015: Conservatives

Joan Ryan – Enfield North
Majority: 1086 (2.3 per cent)
Second place in 2015: Conservatives

Peter Kyle – Hove
Majority: 1236 (2.4 per cent)
Second place in 2015: Conservatives

Paula Sheriff – Dewsbury
Majority: 1451 (2.3 per cent)
Second place in 2015: Conservatives

Cat Smith – Lancaster & Fleetwood
Majority: 1265 (3.1 per cent)
Second place in 2015: Conservatives

Natascha Engel - North East Derbyshire
Majority: 1883 (3.9 per cent)
Second place in 2015: Conservatives

Gareth Thomas – Harrow West
Majority: 2208 (4.8 per cent)
Second place in 2015: Conservatives

Madeleine Moon – Bridgend
Majority: 1927 (4.9 per cent)
Second place in 2015: Conservatives

Karen Buck – Westminster North
Majority: 1977 (5 per cent)
Second place in 2015: Conservatives

Iain Murray – Edinburgh South
Majority: 2637 (5.3 per cent)
Second place in 2015: SNP

Rosena Allin-Khan – Tooting
Majority: 2842 (5.3 per cent)
Second place in 2015: Conservatives

Ian Lucas – Wrexham
Majority: 1831 (5.6 per cent)
Second place in 2015: Conservatives

Richard Burden – Birmingham Northfield
Majority: 2509 (5.9 per cent)
Second place in 2015: Conservatives

Mary Creagh – Wakefield
Majority: 2613 (6.1 per cent)
Second place in 2015: Conservatives
 

Vernon Coaker – Gedling
Majority: 2986 (6.2 per cent)
Second place in 2015: Conservatives

Clive Efford – Eltham
Majority: 2693 (6.2 per cent)
Second place in 2015: Conservatives

Rob Flello - Stoke-on-Trent South
Majority: 2539 (6.5 per cent)
Second place in 2015: Conservatives

Susan Jones – Clwyd South
Majority: 2402 (6.8 per cent)
Second place in 2015: Conservatives

Jim Cunningham – Coventry South
Majority: 3188 (7.3 per cent)
Second place in 2015: Conservatives

Jenny Chapman – Darlington
Majority: 3024 (7.6 per cent)
Second place in 2015: Conservatives

David Hanson – Delyn
Majority: 2930 (7.7 per cent)
Second place in 2015: Conservatives

Gordon Marsden – Blackpool South
Majority: 2585 (8 per cent)
Second place in 2015: Conservatives

Julie Cooper – Burnley
Majority: 3244 (8.1 per cent)
Second place in 2015: Liberal Democrats

Mark Tami – Alyn & Deeside
Majority: 3343 (8.1 per cent)
Second place in 2015: Conservatives

Nic Dakin – Scunthorpe
Majority: 3134 (8.5 per cent)
Second place in 2015: Conservatives

Kerry McCarthy – Bristol East
Majority: 3980 (8.6 per cent)
Second place in 2015: Conservatives

Paul Flynn – Newport West
Majority: 3510 (8.7 per cent)
Second place in 2015: Conservatives

Alan Whitehead - Southampton Test
Majority: 3810 (8.8 per cent)
Second place in 2015: Conservatives

Neil Coyle – Bermondsey & Old Southwark
Majority: 4489 (8.8 per cent)
Second place in 2015: Liberal Democrats

Lindsay Hoyle (Deputy speaker) – Chorley
Majority: 4530 (8.8 per cent)
Second place in 2015: Conservatives

Helen Goodman – Bishop Auckland
Majority: 3508 (8.9 per cent)
Second place in 2015: Conservatives

Thangam Debbonaire – Bristol West
Majority: 5673 (8.9 per cent)
Second place in 2015: Green

Geoffrey Robinson – Coventry North West
Majority: 4509 (10 per cent)
Second place in 2015: Conservative

Graham Jones – Hyndburn
Majority: 4400 (10.2 per cent)
Second place in 2015: Conservatives

David Crausby – Bolton North East
Majority: 4377 (10.2 per cent)
Second place in 2015: Conservatives

Ivan Lewis - Bury South
Majority: 3508 (8.9 per cent)
Second place in 2015: Conservatives

Liz McInnes – Heywood & Middleton
Majority: 5299 (10.9 per cent)
Second place in 2015: Ukip

Alison McGovern – Wirral South
Majority: 4599 (11 per cent)
Second place in 2015: Conservatives

Alan Meale – Mansfield
Majority: 5135 (11.3 per cent)
Second place in 2015: Conservatives

0800 7318496