The former President of the FIA, Max Mosley, has a pending application to the European Court of Human Rights in which he seeks to contend that the United Kingdom has a positive obligation under Article 8 to require the media to give prior notice of publications which may infringe privacy rights. This application was lodged on 29 September 2008 and was communicated to the British Government on 22 October 2009.
The “Statements of Facts and Issues” can be found here. The two crucial questions before the Court are these
(a) Did the Government have a positive obligation to protect the applicant’s privacy by providing for a legal duty (a “notification requirement”) on the News of the World to warn him in advance of publication in order to allow him to seek an interim injunction?
(b) Would such a positive obligation and corresponding duty on newspapers and other media strike the correct balance between the interests protected under Article 8 and freedom of expression as guaranteed by Article 10 of the Convention?
Max Mosley argued forcibly in favour of a “prior notification requirement” at the recent Gray’s Inn Forum “Gagging the Media” (blogged here). He threw down a challenge to the media representatives present to explain what was wrong with such a requirement: the main responses seemed to be that it would be commercially inconvenient and ran the risk of the “victim” of disclosure going to a rival publication with a different “spin” on the story. Mr Mosley’s response that commercial interests should not take precedence over privacy interests was not convincingly answered.
It has now been reported that a group of media organisations represented by Mr Mark Stephens and Mr Geoffrey Robertson QC have obtained permission to intervene in Mr Mosley’s case. The media organisations are: the Media Legal Defence Initiative (MLDI), Index on Censorship, the International Media Lawyers Association, the European Publishers’ Council, the Mass Media Defence Centre, the Romanian Helsinki Committee, the Bulgarian Access to Information Programme Foundation, and Global Witness. We do not know whether the interventions have yet been lodged but we assume that the media organisations would make them public in accordance with their Article 10 obligations.
Mr Stephens appears to have already formed a view about the Court’s attitude to the Mosley case. He is quoted as saying
“It is very worrying that a court which has not been favourable to free speech recently has fast tracked this particular application and this may well be an indication that the judges are preparing to mount another attack on the media.
If they uphold Mosley’s complaint, this will be further evidence of a need for a British Bill of Rights that protects our fundamental press freedoms.”
Mr Robertson QC is quoted as saying
“Mr Mosley’s argument that the law should require prior notification before publication is a fundamental breach of the rule against prior restraint, first stated by Blackstone and famously embodied in the Duke of Wellington’s challenge, ‘publish and be damned'”.
This eminent media lawyer appears to have forgotten that the rule against prior restraint has never extended to confidential (or private) information and that the Duke of Wellington was talking about a threatened libel. We would be surprised if the media intervenors were advocating unrestrained publication of private and confidential information but we await sight of their submissions to the Court.
In an article in the Lawyer under the title “Media Frenzy” it is suggested that the rise in the number of media interventions in cases is the result of an orchestrated attack by defendant media lawyers on their claimant counterparts.