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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Donald Trump's healthcare failure could be to his advantage

The appearance of weakness is less electorally damaging than actually removing healthcare from millions of people.

Good morning. Is it all over for Donald Trump? His approval ratings have cratered to below 40%. Now his attempt to dismantle Barack Obama's healthcare reforms have hit serious resistance from within the Republican Party, adding to the failures and retreats of his early days in office.

The problem for the GOP is that their opposition to Obamacare had more to do with the word "Obama" than the word "care". The previous President opted for a right-wing solution to the problem of the uninsured in a doomed attempt to secure bipartisan support for his healthcare reform. The politician with the biggest impact on the structures of the Affordable Care Act is Mitt Romney.

But now that the Republicans control all three branches of government they are left in a situation where they have no alternative to Obamacare that wouldn't either a) shred conservative orthodoxies on healthcare or b) create numerous and angry losers in their constituencies. The difficulties for Trump's proposal is that it does a bit of both.

Now the man who ran on his ability to cut a deal has been forced to make a take it or leave plea to Republicans in the House of Representatives: vote for this plan or say goodbye to any chance of repealing Obamacare.

But that's probably good news for Trump. The appearance of weakness and failure is less electorally damaging than actually succeeding in removing healthcare from millions of people, including people who voted for Trump.

Trump won his first term because his own negatives as a candidate weren't quite enough to drag him down on a night when he underperformed Republican candidates across the country. The historical trends all make it hard for a first-term incumbent to lose. So far, Trump's administration is largely being frustrated by the Republican establishment though he is succeeding in leveraging the Presidency for the benefit of his business empire.

But it may be that in the failure to get anything done he succeeds in once again riding Republican coattails to victory in 2020.

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.