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?
Media organisations have submitted three different sets of submissions, drafted by three English QCs. The first and most colourful are the submissions on behalf of the Media Legal Defence Initiative and eight other bodies, drafted by Mr Geoffrey Robertson QC. No prisoners are taken. The submissions begin by attacking the United Kingdom – “which has been demonstrated to be amongst the worst violators of free speech in Europe” – then move on to attack the court itself for its “illegitimate importation of honour and reputation into Article 8″. After a slight pause to complain that prior notification would “ban or delay persishable news” Mr Robertson’s wrath is turned on the failure of the Courts to provide “any sensible or coherent definition of privacy”. He then deals with the “rule against prior restraint” before turning the full force of his scorn on Mr Mosley – noting in passing that “his attraction to le vice anglais is not unusual in English men” (Mr Robertson is from Australia). This tour de force ends with an appeal to the margin of appreciation – as moral standards differ:
“The French are culturally amused at English infantile sexuality such as spanking fetishes said to develop in male public schools; the English deride a state that uses privacy laws to stop its citizens from hearing that fact that its President has an illegitimate child and a son involved in an illegitimate arms trade. The Swedes find British tabloids disgusting; the British find Swedish newspapers terminally boring”
The submissions of the Media Lawyers Association prepared by Heather Rogers QC are positively restrained in comparison. They contend that Mr Mosley’s proposed duty would be wrong in principle, unworkable in practice and would constitute a breach of Article 10. It is argued that domestic law already strikes a proper balance between Articles 8 and 10. Reference is made to the Codes of Practice which apply to the media including (slightly implausibly) the “effective system of self-regulation” overseen by the PCC. It is submitted that any requirement to contact should be addressed in the context of the “ethics of journalism” and is in any event a matter for domestic law. The most important section of submission is its discussion of practical issues: who should be contacted? what about prior publication? what about others affected by the publication? what would be the scope of a public interest exception? The submission concludes, in moderate tones
“the ECtHR should reject Mosley’s contention. He seeks through an ECtHR decision to impose a legal duty in an area which is left, clearly and distinctly, to each Member State to decide. He has not established that there is any “necessity” for the imposition of a binding legal duty of pre-publication notification. Such a duty would be wrong principle; it would be unworkable in practice; it would constitute an unwarranted and disproportionate interference with freedom of expression”.
The third set of submissions are prepared by Lord Lester QC and Charles Potter on behalf of Guardian News and Media. They strike a slightly different note from the Media Legal Defence Initiative submissions, beginning by expressing sympathy for Mr Mosley. It is, however, argued that the duty which he contends for would have a serious adverse effect on free expression because it would also impact on public authorities, NGOs or private individuals and because it would require prior notification, as a matter of principle, where publication could be restricted to protect any “legitimate aim”. It is argued that damages can be an adequate remedy in privacy cases so pre-notification is not always required. It is suggested that the proposed duty would be unworkable and inconsistent with the recognition of responsible journalistic freedom and would have a draconian effect on the media. The conclusion is that the duty contended for is not required by Article 8 and is inconsistent with Article 10.
These are interesting (and in the case of the first set, entertaining) submissions which repay careful reading. We leave it our readers to assess whether or not they are persuasive.