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.)

Cameron in Nuneaton. Photo: Getty
Show Hide image

Why fewer of us want a long-term relationship ... with a political party

In 2015, 38 per cent of voters backed a different party to the one they supported in 2010. So what does the rise of swing voters mean for British politics?

For decades political parties have competed furiously for one of the great prizes of British politics: the affections of the swing voter. It wasn’t that long ago that there were relatively few political swingers: until the 1990s, fewer than a quarter of voters would switch parties from one election to the next.

Yet that once relatively rare breed is becoming increasingly common, which means party campaigners are going to have to come up with new tactical thinking. The British Election Study survey panels, conducted episodically over the last fifty years, are unique in that they are able to track the same voters from one election to the next, unlike more conventional opinion polls that only look at a snapshot of voters at a given time. Using these studies, you can identify the percentage of voters who switch their vote from one party to another between each pair of elections since 1966 when such data was first collected.

In 1966 only around 13 per cent of voters had changed their minds since the previous election in 1964. Since then, the proportion of swingers has been steadily increasing, and by 2015, 38 per cent of voters backed a different party to the one they supported in 2010.

The increase in swing voters is pretty consistent. The only exceptions are between February and October 1974, when (understandably) fewer voters changed their minds in eight months than switched in the preceding four years, and between 1997 and 2001, when the electoral dominance of New Labour under Tony Blair held back the tide for a time. These two exceptions aside, the increase has been constant election-on-election.

A lot of vote shifting can go on even between elections where the overall result remains stable. In 2001, for example, more people switched votes than in any election before 1997, with a surprising level of turmoil beneath the surface stability. While these largely cancelled out on that occasion, it set the stage for more dramatic changes in the parties’ votes later on.

So British voters now seem more likely than ever to jump from party to party. But who exactly are these swingers? Are they disillusioned former party loyalists? Or have British voters simply stopped getting into a serious relationship with the parties in the first place? We can get some insight into this using data from the yearly British Social Attitudes Survey, looking at the number of respondents who say that they do not identify with any of the political parties (party identifiers tend to switch much less often) when they are asked ‘Generally speaking, do you think of yourself as a supporter of any one political party?’ and then ‘Do you think of yourself as a little closer to one political party than to the others?’ if they say no to the first question. The graph below combines data from 1984 to 2013. Each line represents people who were born in a different year. Higher lines mean that there are more people who do not identify with a political party. So, for instance, voters born in 1955 started with very low levels of non-identification (22 per cent), which have gradually risen to 44 per cent in the latest survey. Most of the lines on the graph go up over time, which shows that almost all generations are falling out of love with the parties.

However, an acquired taste in swinging among the older generations is dwarfed by the promiscuous younger generations – shown by the dashed lines – most of whom never form an attachment to a party at all. Each generation in the data has been less committed to the parties than the previous generation was at the same age, with around 60 per cent of the youngest generation – those born since 1985 – expressing no attachment to any political party.

Since most of this change has been a generational shift, it may be a long road back for the parties. Loyalty to parties is often handed down in families, with children inheriting their parents’ commitment to a party. Now that this process has broken down, and younger generations have lost their attachment to parties, they may in turn pass on this political detachment to their children.

The majority of younger voters have simply never grown up with the idea of getting into a long-term relationship with a political party, so they may never settle down. Many Labour MPs were outraged when it turned out that lots of the new members who joined up to vote for Jeremy Corbyn had voted for the Green Party just a few months before, but this may simply reflect the political approach of a generation who see parties as needing to earn their vote each time rather than commanding lasting, even unconditional loyalty.

If Britain’s newfound taste for swinging isn’t going to disappear any time soon, what does it mean for party competition? In the past most people had settled partisan views, which seldom changed. General elections could be won by attracting the relatively small group of voters who hadn’t made up their minds and could very easily vote for either of the two main parties, so political parties based their strategies around mobilising their core voters and targeting the few waverers. While they worried about traditional loyalists not turning up to the polls, the parties could be assured of their supporters’ votes as long as they got them to the voting booth.

Nowadays, swing voters are no longer a small section of the electorate who are being pulled back and forth by the parties, but a substantial chunk of all voters. This helps to explain why politicians have been so surprised by the sudden rise of new parties competing for groups previously thought to be reliable supporters. The new parties that have entered British politics have also allowed voters to express their views on issues that don’t fall neatly into traditional left– right politics such as immigration (UKIP) or Scottish independence (the SNP). This in turn has posed a dilemma for the traditional parties, who are pulled in multiple directions trying to stop their voters being tempted away.

This may just be the start. If the number of swing voters stays this high, the parties will have to get used to defending themselves on multiple fronts.

This is an extract from More Sex, Lies and the Ballot Box, edited by Philip Cowley and Robert Ford.