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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Jeremy Corbyn may be a Eurosceptic, but he still appeals to the values of many Remainers

He reassures Labour MPs defending majorities in heavily pro-EU areas that things will be OK.

There are two facts about Brexit that everyone seems to forget every few weeks: the first is that Jeremy Corbyn is a Eurosceptic. The second is that the first fact doesn't really matter.

The Labour leader's hostility to the European project is back in the news after he told Andrew Marr that the United Kingdom's membership of the single market was inextricably linked with its EU membership, and added for good measure that the “wholesale importation” of people from Eastern and Central Europe had been used to “destroy” the conditions of workers, particularly in the construction industry.

As George Eaton observes on Twitter, Corbyn voted against the creation of the single market in 1986 (and the Maastricht Treaty, and the Lisbon Treaty, and so on and so on). It would be a bigger shock if the Labour leader weren't advocating for a hard exit from the European Union.

Here's why it doesn't matter: most Labour MPs agree with him. There is not a large number of Labour votes in the House of Commons that would switch from opposing single market membership to supporting it if Corbyn changed his mind. (Perhaps five or so from the frontbenches and the same again on the backbenches.)

There is a way that Corbyn matters: in reassuring Labour MPs defending majorities in heavily pro-Remain areas that things will be OK. Imagine for a moment the reaction among the liberal left if, say, Yvette Cooper or Stephen Kinnock talked about the “wholesale importation” of people or claimed that single market membership and EU membership were one and the same. Labour MPs in big cities and university towns would be a lot more nervous about bleeding votes to the Greens or the Liberal Democrats were they not led by a man who for all his longstanding Euroscepticism appeals to the values of so many Remain voters.

Corbyn matters because he provides electoral insurance against a position that Labour MPs are minded to follow anyway. And that, far more than the Labour leader's view on the Lisbon Treaty, is why securing a parliamentary majority for a soft exit from the European Union is so hard. 

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