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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In Kezia Dugdale, Scottish Labour has picked an unlikely winner

The party leader is making gains internally at least. 

Kezia Dugdale did not become the leader of Scottish Labour in the most auspicious of circumstances. She succeeded Jim Murphy, who lasted just six months in the job before losing his Westminster seat in the 2015 general election. She herself has survived one year, but not without rumours of a coup.

And so far, she has had little reward. Labour lost 14 seats in the 2016 Scottish parliament elections, and not just to the auld enemy, the SNP, but a seemingly decrepit one, the Tories. She backed the losing candidate in the recent Labour leadership contest, Owen Smith. 

Yet Dugdale has firm fans within Scottish Labour, who believe she could be the one to transform the party into a vote-winning force once more. Why?

First, by the dismal standards of Scottish Labour, Dugdale is something of a winner. Through the national executive committee, she has secured the internal party changes demanded by every leader since 2011. Scottish Labour is now responsible for choosing its own Westminster candidates, and creating its own policy. 

And then there’s the NEC seat itself. The decision-making body is the main check on the Labour leadership’s power, and Dugdale secured an extra seat for Scottish Labour. Next, she appointed herself to it. As a counterweight to Jeremy Corbyn’s supporters, Dugdale now has influence within the party that extends far outside Holyrood. The Dundee-based Courier’s take on her NEC victories was: “Kezia Dugdale completes 7-0 Labour conference victory over Jeremy Corbyn.”

As this suggests, Dugdale’s main challengers in Scotland are likely to come from the Corbyn camp. Alex Rowley, her deputy leader, backed Corbyn. But Labour activists, at least, are battle weary after two referendums, a general election and a Scottish parliament election within the space of two years. One well-connected source told me: “I think it's possible we haven't hit rock bottom in Scotland yet, so the scale of the challenge is enormous.” 

Polls are also harder to ignore in a country where there is just one Labour MP, Ian Murray, who resigned from the shadow cabinet in June. A YouGov exit poll of the leadership election found Smith beating Corbyn in Scotland by 18 points (in every other part of Britain, members opted for Corbyn). Observers of Scottish politics note that the most impressive party leaders, Nicola Sturgeon and Ruth Davidson, were given time and space to grow. 

In policy terms, Dugdale does not stray too far from Corbyn. She is anti-austerity, and has tried to portray both the SNP and the Tories as enemies of public service. She has attacked the same parties for using the Scottish referendum and the EU referendum to create division in turn. In her speech to conference, she declared: “Don’t let Ruth Davidson ever tell you again that the Union is safe in Tory hands.”

So long as Labour looks divided, a promise of unity will always fall flat. But if the party does manage to come together in the autumn, Dugdale will have the power to reshape it north of the border, and consolidate her grip on Scottish Labour.