David Allen Green

A critical and liberal look at law and policy

What the Mosley privacy decision really means

Where does this leave effective protection for privacy?

By David Allen Green Published 10 May 2011 14:37

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.

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39 comments

Wed, 2011-05-11 11:34 — jie4v7i14

Black and Tans, a dark chapter in British Army history, and it Westminster supporters then,
http://www.youtube.com/watch?v=ORifieiZiP4

Duck, suckers, http://www.youtube.com/watch?v=x4Ab7vNhd18

Wed, 2011-05-11 11:56 — jie4v7i14

William Byrd in El Salvador,
http://www.youtube.com/watch?v=NKT0omZ6fiU

Sat, 2011-05-14 00:24 — Mrs.Josephine Hyde-Hartley (not verified)

Thank you EhtchTee. Yodelling makes a nice change.

But about this privacy thing -what concerns me also is how expensive it has become already in a diverse range of situations especially when applying for dedicated benefits and credit to which we may all be entitled. People don't seem to realise that too many of these so-called public goods are provided only on condition one is prepared to blather out all the personal and private details concerning one's family members, either down some awfully unregulated telephone line or on some equally unfit for purpose bit of paper calling itself a form. We either have to do this or we may be treated less favourably by eg having to pay full fare for our children on the bus. This is the meaning of deprivation in my view and why even in the face of all this wonderful digital and electronic technology it's still so important not to forget why one is really one's own data controller - namely where others cannot safely manage this eg when the way they're working is obviously not fit for purpose. This isn't about secrecy but rather it's about competition.

Why should one be deprived of vital information in order to conduct what is essentially one's own business anyway? In my view such divisive intrusion is a big part of why we will always have the poor with us, as somebody famous once said (to the one who sold him). It seems those of us who definitely don't share personal and confidential information with all and sundry can only be treated less favourably than those who don't seem to value the privacy, dignity and autonomy which together make up the formal characteristics of our freedom as whole citizens in the UK.

Meanwhile last week was it the reputable company called Sony which had to admit the loss of loads more personal details because of what has been described as an "out-dated" data base?

Tue, 2011-05-10 15:44 — Steve Jones (not verified)

David, what you fail to address in your article is that the imposition of such injunctions is a constraint on somebody else who might well wish to tell their story. My view is firmly that the default position is to favour freedom of expression and not judicial censorship. Such censorship can only be justified where there are explicit duties of confidence. That injunctions are used to silence embarrassing revelations is no justification for a draconian silencing of somebody's right to express their own side of their own story. Those that do engage in "social misdemeanours" are surely responsible for their own actions and the consequences.

Now none of this is to justify the Max Mosley case. The media should have no right to engage in intrusive exercises, use of subterfuge and the like. But the position there is to make the consequences for such transgressions sufficiently painful. The increased involvement of judicial intervention into the media is not something which I welcome, all though, no doubt, there are plenty of lawyers that would gain. It is notable that many of those lawyers who are supporting "prior notification" are not exactly disinterested parties.

Tue, 2011-05-10 15:52 — David Allen Green1

@Steve Jones

"...there are plenty of lawyers that would gain. It is notable that many of those lawyers who are supporting "prior notification" are not exactly disinterested parties."

Er, given that I favour radical limitation of libel, I do not think it is quite fair to say I am motivated by such factors; I also rarely do privacy law work.

So a rather needless and unfortunate ad hom attack....

Tue, 2011-05-10 16:00 — Steve Jones (not verified)

@david

So precisely where did I say that you had anything to gain from this or were motivated by any such personal interest? Rather, I feel, reading something into a sentence that wasn't there.

Tue, 2011-05-10 16:00 — Stuart Brown (not verified)

You say that injunctions more equitable because they are 'cheaper, speedier, and effective' and that '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.'

I would point out that an injunction is irretrievably spent money, whereas a damages action seeks, well, damages. I believe that lawyers in these cases can be known to operate on a 'no win no fee' basis, or even, David, don't some lawyers do pro bono work in this general area? So your financial argument does not stand. I have no spare capital: an injunction is impossible for me, whereas I might be able to find a lawyer to undertake a damages case.

The more moral argument, that from genuine privacy, I think is also problematic as the concept of injunctions relies upon the public interest test necessarily being conducted, well, in secret by a member of a occupation who are not highly renowned for their understanding of or connection with the ordinary public.

The status quo is not perfect, but I still believe injunctions are less so. The optimum solution would for the press to stop being such much-racking shitebags and, again, I see little in the concept of injunctions to bring this about, whereas a series of extremely painful damages actions could eventually reach up to the proprietors' pockets and rebalance the payout-of-damages vs profit-from-increased-circulation equation in a direction which discouraged these invasions.

Tue, 2011-05-10 16:03 — Jennie Kermode (not verified)

I'm intrigued by this concept of 'social misdemeanours'. At Trans Media Watch I frequently work with members of the public whose lives have been ruined by media exposure when their only 'misdemeanour' was to be transsexual. Gay people in public life frequently fear the exposure of their sexuality, which they may not have discussed with family members; what action ought they to have avoided, being gay or having a certain type of career? When it comes to social acceptability, not everybody enjoys the same privileges.

Tue, 2011-05-10 16:08 — Steffan John (not verified)

So David, what's your view on what should the law allow and not? Like you, I think freedom of expression is immensely important, but provided that clear hypocrisy and corruption are not involved, I can’t help but feel that privacy law is too weak. Could such a legal framework – that people (not corporations) can protect their privacy except in cases where there is a public interest, and that corruption or hypocrisy is involved – be tenable?
Should the fact that the internet undermines the practice of privacy mean that any privacy law should be abandoned on grounds of being unworkable, or should we still have some form of privacy law?
I’m undecided on this one, so I for one would like to know what you think on what should be done, not just on what the law means.

Tue, 2011-05-10 16:11 — Petra (not verified)

"the imposition of such injunctions is a constraint on somebody else who might well wish to tell their story. My view is firmly that the default position is to favour freedom of expression and not judicial censorship. Such censorship can only be justified where there are explicit duties of confidence. That injunctions are used to silence embarrassing revelations is no justification for a draconian silencing of somebody's right to express their own side of their own story. Those that do engage in "social misdemeanours" are surely responsible for their own actions and the consequences"
Not is the revelations affect their children, their marriages, their family, their career for the only reason that the paper want to print it. Public Interest must be the only motivating factor in publishing stories about someone's private life.

Tue, 2011-05-10 16:18 — Steve Jones (not verified)

I'm not proposing that the press have a right to publish what in the DPA is called "sensitive personal information". However, what I am saying is that people have a right to express their own stories which is a wholly different thing to active and unwanted investigations. The point with the Max Mosley case is that it was gratuitous and did not come about because any of the involved parties wanted to tell the story.

The "social misdemeanour" issue is simply shorthand for those engaging in what are generally considered to be socially unacceptable behaviour (betrayals of spouses, use of drugs etc.). Now it will always be the case that some people will want to keep secret from their family what their real nature is. However, that's a decision that everybody has to make and deal with the consequences of pretending to be what they aren't. It hardly takes the attention of the press to expose the truth - I would imagine that in the vast majority of cases it has nothing to do with the media.

Tue, 2011-05-10 16:21 — Steve Jones (not verified)

@Petra

I have to disagree. Right to self-expression comes first as far as I'm concerned. The betrayals have already occurred. Those that engage in such things are always in danger of causing harm and they are the people responsible.

Tue, 2011-05-10 16:24 — jie4v7i14

Reminds me when I climbed over the Canterbury Cricket ground, opposite the hospital, with my kiwi and Coulsdon Croydon mate, all of us without tickets, when Glamorgan won the sunday league back in the early 1990s. Incredible amount of welsh there. Bumped into so many welsh actors it was incredible, like this bloke, Hywel Dafydd,
http://www.youtube.com/watch?v=V6XQQ7JQrJ4

Tue, 2011-05-10 16:35 — swatantra

Shut it Moseley. If you'd not pursued the matter, your private life would have been a 9 day wonder and forgotten, and put down to ecentricity and advancing years. Instead its splashed across the front pages. The Press were right to publish because it was in the public interest how a leading member of the Establishment was cheating on his family.
And the public mores on gayness has changed considerably in he last 0 years. Nobody cares a fig, apart from the surrogacy question where there are genuine doubts.

Tue, 2011-05-10 16:49 — Lou (not verified)

On that basis then Swatantra should we expect a similar insight into the private life of a neighbour who might be a leading member of local society with a penchant for dressing up as Jack Sparrow and singing Ahoy me hearties? Should that be uin the local paper or nationals because it's a matter of public interest? Public nosiness and jeremy Kyle titillation more like.

There is nor need for the public to know that Moseley was cheating on his wife, it's not like he was Minister for Families advocating marriage and fidelity for everyone and there was no public interest in this case. Only a desire by the gutter press to score a few points over him and make spurious links between his sexual delectations and his father.

Tue, 2011-05-10 17:04 — jie4v7i14

Oh, David, I thought my first couple of posts were quite amusing. Play the white man will you please.

Tue, 2011-05-10 18:29 — jie4v7i14

A song for Gilbert, since a marvellous Tyrol artist, Sud Tyrol, Italiano,
http://www.youtube.com/watch?v=67rc96joOz8

Tue, 2011-05-10 17:49 — jie4v7i14

Fuck it, I am going to post it again, another more couple of people might see it, which is something, I suppose, David!
http://www.youtube.com/watch?v=GzKv5gjOzTA

Tue, 2011-05-10 17:52 — jie4v7i14

By the way all, the problems above in Cable Street in 1936 was down to above persons dad. To clear things up.

Tue, 2011-05-10 18:55 — jie4v7i14

Come to Llangollen, Swiss lady and yodal to us. I am sure you can afford it. A Turkish young lady that visited recently,
http://www.youtube.com/watch?v=7r2WeidzOYM

Tue, 2011-05-10 18:22 — jie4v7i14

http://www.youtube.com/watch?v=yuiSyi8UtJ0
Gilbert and George, art.

Tue, 2011-05-10 18:37 — jie4v7i14

Swiss lady keeping the Alp yodel going, and so she do, mmmm,
http://www.youtube.com/user/swissinfovideos?v=xT5wVLxmDSk

Tue, 2011-05-10 19:07 — jie4v7i14

I will have to visit Ann in Eglwyswrw again, with her stunning welsh harps and pianos. She taught piano from as a twenty year old, which is just legend.

Song for Ann - she liked a bit of Madonna, http://www.youtube.com/watch?v=rSaC-YbSDpo

Tue, 2011-05-10 18:55 — Fagburn (not verified)

'In 99 per cent of cases, the press contacts the subjects of stories in advance, and that is not "censorship" either.'

What about when they tell a gay public figure they're going to out them, unless they get their "exclusive" coming out story?

http://www.fagburn.com/

Tue, 2011-05-10 19:17 — Mark Samuels (not verified)

I, for one was leaning towards Mosley on this. I don't agree with his particular delectations, but I am tired of the press being the sole arbiter of what is 'in the public interest'. I wish the media would gain some self respect and then we wouldn't need for this legal action.

Tue, 2011-05-10 19:17 — jie4v7i14

But Ann is not sexual by the way, as stable musicians tend to be. After my mate who was her boyfriend shagged Ann, she asked have you done, in welsh, ti wedi mynd?

That is how you can't have it both ways in life. Do you want a genious or an idiot?

Tue, 2011-05-10 19:26 — jie4v7i14

http://www.youtube.com/watch?v=vVlKYfJu_I4
http://www.youtube.com/watch?v=ZDRHXplCJtY
Peace, and that bollocks.

Tue, 2011-05-10 19:37 — jie4v7i14

Choughs on Stackpole Head, in West Wales, looking disinterested,
http://www.pixelbirds.co.uk/webchuff2.jpg

Tue, 2011-05-10 20:20 — jie4v7i14

Denise Richards, oh yes,
http://www.youtube.com/watch?v=HZuYlOsKwAw

Another, Ahem!, welsh Denise, ballbags and tits!
http://www.youtube.com/watch?v=sxPBNkgmiS8

Tue, 2011-05-10 20:25 — swatantra

Better out than in. Mosely should be grateful that his penchant is now out in the open, thanks othe Press. He should be relived that he no longer has to live a lie. And because he has money and influence and is part of the Establishment his position hasn't suffered all that much. I'm sure he still gets invited to all the best Parties.
Corrie has a subplot where Audrey has been having to cover up for Mark because of his penchant for womens dresses and makeup. Its led to all sorts of problems. In the end he was forced into coming out and admitting it. I bet he's relieved to get it out of the way. And Audrey also.

Tue, 2011-05-10 20:49 — jie4v7i14

For Melony, swiss? same difference, mountains are moutains,
http://www.youtube.com/watch?v=c1D2s3En96c

Tue, 2011-05-10 21:07 — jie4v7i14

But talking about Anne above, there is a way to build them up, in the bedroom, before you get there, to build their histamine sneezing orgasm levels up.
http://www.youtube.com/watch?v=ThHz9wlBeLU

Tue, 2011-05-10 21:21 — jie4v7i14

! Sorry, copy and paste problem,
http://www.youtube.com/watch?v=nTHx3soSIV4

Tue, 2011-05-10 23:04 — jie4v7i14

russki, http://www.youtube.com/watch?v=hhVPro7rdRA

Tue, 2011-05-10 23:09 — jie4v7i14

http://www.youtube.com/watch?v=XETo_SXMuCE
naff?

Tue, 2011-05-10 23:13 — jie4v7i14

http://www.youtube.com/watch?v=kzs9o1MEYGI
Russia is not so bad, US.

Tue, 2011-05-10 23:19 — jie4v7i14

By the way US, I havn't a bleeding clue what he is spouting on about, but it sounds good, and more importantly, totally honest sounding.

Wed, 2011-05-11 01:31 — ss-costumes4rent.com (not verified)

What on earth has he done now that's so secret? After you've been exposed romping with vice-girls dressed up in Nazi gears, who gives a fuck what he does now? Just another high-powered, public school warped perv.

Wed, 2011-05-11 08:17 — fgggyu (not verified)

very cheep--http://fivefingersebuy.com
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