Later today the European Court of Human Rights is expected to deliver judgment in the Max Mosley case.
As the judgment may be highly significant in the development of privacy law in the United Kingdom, it is important to be clear what questions the Court has actually been asked.
The background to this case is fairly well-known, but from a legal perspective the following facts are important.
The private sexual life of Mosley was invaded as part of a tabloid newspaper exercise. Information obtained from this intrusion was then published in a Sunday newspaper and video footage was posted on the newspaper’s website. The High Court found that there was no public interest in this intrusion at all. The newspaper’s attempt at claiming a public interest was unconvincing and, at best, shallow.
The consequence was that Mosley had had his right to private life wrongly and irrevocably interfered with for no good reason.
This was unlawful, as such misuse or wrongful disclosure of private information is a civil wrong in England and Wales as a consequence of Parliament’s passing of the Human Rights Act 1998.
And unlike a person’s reputation which can be vindicated by means of a claim for defamation, there is no sensible way a person’s privacy can be restored. What this means is that there is a legal right which cannot actually be protected.
The High Court awarded Mosley damages of £60,000.
However, Mosley decided to take his case to the European Courts of Human Rights in Strasbourg, the guardian of the European Convention of Human Rights (not to be confused with the European Court of Justice in Luxembourg which superintends EU law). The basis of Mosley’s complaint was that the United Kingdom does not provide for any legal remedy which adequately protects his right to privacy.
Mosley’s case is as follows: newspapers contact the subjects of their stories some 99 per cent of the time before publication (a figure provided by Paul Dacre, editor of the Daily Mail, himself); the other 1 per cent of the time is because the newspaper believes it would face an injunction application so as to prevent wrongful publication; however, in that 1 per cent of cases, the High Court under section 12 of the Human Rights Act 1998 would be required to balance the right to privacy against the newspaper’s right to free expression.
Accordingly, there would be no difference in 99 per cent of cases and in the other 1 per cent, the legislation is in place to ensure privacy does not automatically trump free expression.
The UK government should, Mosley submitted to the European Court of Human rights, therefore ensure that newspapers always contact the subjects of their stories before publication so that there can, when appropriate, be an application for a privacy injunction.
If the public interest in publication is stronger than the right to privacy in any given case, the injunction application would not succeed.
Against this claim, the newspaper industry point to the fact that to introduce such a requirement to notify a subject of a story that his or her privacy rights are to be invaded would require either the UK government to introduce legislation or for the courts to further develop the law.
They argue also from a general “freedom of the press” standpoint, saying that although it is good journalistic practice to notify a subject before publication, this should not be converted into a firm legal obligation backed by coercive sanctions for non-compliance. By providing an opportunity for the “rich and famous” to obtain an injunction, the contention of the newspapers is that one would be allowing people to buy themselves out of having their conduct scrutinised by a free and vigorous press necessary in a free society.
It is not clear which way the Court will decide the case. It may even rule on the narrow point of admissibility alone, leaving the substantive issues untouched. And any decision will probably be appealed by the losing party to the Grand Chamber for a further hearing.
If Mosley is correct that one must have an effective right to privacy, especially as in his case when the newspaper cannot establish at court any public interest in interfering with that right, then there is a difficult question of how the legal system should protect him. Are damages really an adequate remedy?
And then there are further questions.
Would obliging newspapers to contact subjects in advance of publication really be an onerous interference with their right to free expression, given that such contact is the norm and the newspapers anyway have protection under the Human Rights Act for publications in the public interest?
If so, how exactly would such an obligation be enforced?
And, ultimately, would the UK government be compelled to again to change the law in that one way which would be even more unpopular with the tabloids than giving prisoners the vote?
I will be posting my analysis of the Mosley judgment here later today.
In the meantime, the following is essential background reading on the case:
UPDATE: Mosley has lost his bid to force newspapers to warn individuals ahead of publication. More to follow…
David Allen Green is legal correspondent of the New Statesman