In a previous post we mentioned that on 1 February 2010 the President of the Court had given various media organisations permission under Rule 44(2) to intervene in Max Mosley’s application to the European Court of Human Rights in which he contends 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. In a subsequent post we discussed the submissions of the media interveners in the case, who variously contended that the United Kingdom was the worst violator of free speech, that the Court of Human Rights had wrongly imported honour and reputation into Article 8, that damages were an adequate remedy, that injunctions were always not the prime remedy for a threatened invasion of privacy, that nearly all the media notify in advance anyway and that a statutory notification requirement would be impracticable. They also all argue that domestic law strikes the correct balance and that the imposition of the notification requirement would be a breach of Article 10.
(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?
(c) Are privacy damages ( such as £60,000) adequate remedies for invasions of privacy and has Max Mosley exhausted his remedies?
Max Mosley’s submissions clearly and logically set out the problem of tabloid media conduct such as that of the News Of the World in his case. His submission, by David Pannick and David Sherborne, sets out UK authority (such as the the Spycatcher case, Lord Woolf in the Flitcroft decision, the House of Lords decision in Cream Holdings v Banerjee, and the Court of Appeal in Douglas v Hello! ) that damages for invasions of privacy are inadequate remedies and that the prime remedy is an injunction (since the release of the private information is permanent and cannot be undone). He argues that the failure to notify in advance deprives the victim of his chance to stop the publication either by explaining that it is completely untrue (such as the example of a false cancer story) or by seeking an injunction ( such as a sex story or intrusive photographs ) and that the Article 8 obligations extend to the provision of a notification requirement.
The United Kingdom Government Submission
The Government submission make many of the same points as are made in the media interventions. In relation to remedies, it seeks to argue by inference (and unconvincingly) that Mosley’s injury was not significant as he contended in trial and as was accepted by the Judge. It also argues that the damages awards in the United Kingdom and other countries were sufficient compensation. Surprisingly, it suggests that the failure to appeal the Judge’s ruling against exemplary damages and the failure to rely upon the rectification and erasure remedies under the Data Protection Act means that the claimant has failed to exhaust his remedies.
The Government also takes the same position as the media in arguing that the Article 8 positive obligations do not require the state to bring a system of law requiring notification. The practicality arguments and public interest are also repeated, but do not appear that convincing, since in reality the media do often notify as a result of which either the story is not published either by agreement or injunction or the story is published.
Probably the the most powerful practical argument from the Government is that of the problem concerning sanctions. Plainly the Government could not force the media to notify in advance and criminal sanctions are obviously inappropriate. In other words, the only remedy available to the claimant would be aggravated damages – which are available now in any event, or exemplary damages .
The suggestions that there may be public interest exceptions (as raised by the Culture Media and Sport Select Committee Report and repeated by the Government ) which are too difficult to define are in our view red herrings since most public interest arguments are fairly clear and the UK Courts are astute not to restrain threatened publications where there are public interest contentions.
The Mosley application highlights the increasingly common tabloid tendency not to notify the target in advance of the publication. Although the media submission suggests that pre-notification is the norm, there have been numerous recent publications (and privacy complaints) where there have been no such notification.