Lawyers acting for Max Mosley have recently published their response to the arguments presented to the Strasbourg court by various intervening media groups and by the UK Government. They argue that “a fundamental misconception” underlies their opponents’ perspectives [2]; that there is a blinkered insistence on Article 10 rights to media freedom to the exclusion of any respect for privacy. On its terms, this is a persuasive argument. If there is a basic error, however, it lies on the side of the applicant.

The essentials of the Mosley argument have not changed since the original submissions. Paraphrasing the final submissions, they are:

(a) that it is for the court to resolve the conflict between Article 8 and and Article 10, and not for the newspaper itself unilaterally to strike the balance between the competing rights;

(b) that a court can only have the opportunity to address the matter if the individual whose Article 8 right is affected has the opportunity to bring it to the court’s attention;

(c) in order to do this, that individual must be notified in advance of the threatened publication, and therefore

(d) as the State is under a positive obligation to secure Article 8 rights, it must somehow impose a prior notification obligation upon publishers of private information.

At first glance, this argument seems intuitively to be correct, and hence compelling. The view of the applicant is that “the logical need for prior notification is unassailable” [7].

The ramifications of this understanding were teased out by Gavin Phillipson in a stimulating paper published last year in the Journal of Media Law. Phillipson highlighted that any discretion left with the media as to whether to notify would be perpetually at risk of abuse. Editors are commercially incentivised – perhaps insensitised – and it is well-known that some at least are contemptuous of both the valuation of privacy in the Convention and of the judges who deploy it in their decisions. Phillipson contended that leaving the decision on whether to notify solely in the hands of an editor would entail that the remedy for breach of privacy rights cannot be understood as being prescribed by or in accordance with the law.

If Phillipson’s additional argument were correct, any question of whether privacy rights are outweighed in the ultimate balance by the public interest in the exercise of expression rights by the media would not arise. The matter would fall to be determined under Article 8 alone. Moreover, the need for the Strasbourg court to leave a margin of appreciation to the contracting state would be substantially reduced as there would be no balancing of rights involved.

All of this rests, however, on a gambit of dubious validity. Mosley’s lawyers contend that “as has been universally recognized, an injunction to prevent publication is the only real ‘remedy’”, and that “damages after the event can never be an effective remedy in these circumstances” [4]. On one level, this premise is obviously correct. No claimant would prefer to seek a remedy for the publication of private information ex post if a preventative option were available. It is certainly true that the outcome of court cases cannot restore privacy in the way that it can restore reputation. Everyone can agree that it is best that injury to others is not caused, and that British media organisations – especially the tabloid press – do sometimes wreak tremendous harm on individuals. Preaching against the sin of injuring others, however, is not the same as demonstrating that a legal remedy in damages provided by the State through the courts cannot be adequate or effective in compensating for privacy harms.

In fact, the contention that damages are an ineffective is neither universally agreed, nor in substance correct. As to whether there is consensus, it is noticeable that in the recent case of Terry (originally LNS) v Persons Unknown [2010] EWHC 119 (QB), Tugendhat J considered that “damages may be an adequate remedy in some cases, if not in all”, and that “if the law is broken, there is a remedy in damages for the distress that is caused” [127-129]. This view echoed those expressed in Hosking v Runting [2004] NZCA 34 in the New Zealand Court of Appeal. Gault P noted that “in most cases, damages will be considered an adequate remedy” [158]; Tipping J agreed: ‘I see the remedy for invasion of privacy as being primarily an award of damages” [258]. Asked to impose a prior notice obligation in an order imposing reporting restrictions in the context of child care proceedings, Munby J considered that this would be “fundamentally objectionable”, “wrong in principle”, and “a wholly unacceptable attempt at censorship” (Kent CC v B (A Child) [2004] EWHC 411 (Fam), at [145]). Similarly, in the context of harm to national security, the courts have baulked at the inclusion of prior notification obligations in court orders, prefering to allow editors to assess for themselves the legal risk and to bear the responsibility for error of judgment (see, for example, Attorney General v Times Newspapers [2001] EWCA Civ 97, at [24]-[35], per Lord Phillips MR).

Parliament too adopted a contrary position in both section 12 of the Human Rights Act 1998 and section 32 of the Data Protection Act 1998. In both instances, the approach prescribed for applications for interim relief implies a degree of comfort with the idea that private information will be published unlawfully from time to time to be compensated by way of damages only.

There are of course, plenty of judicial and academic dicta gainsaying this attitude. The point here is to highlight the absence of the asserted consensus. (By way of aside, it can be noted that the key dictum on which the applicants rely – that of the Court of Appeal in Douglas v Hello! Ltd [2005] EWCA Civ 595 – was both obiter, and a point that the court explicitly acknowledged to be “an issue upon which [they] were not addressed” [251].

On the point of substance, the primary justification for the contention that interim relief is the only effective remedy in privacy cases is that ‘once lost’, privacy and confidentiality are ‘gone forever’. This is contrasted with defamation where the perceived harm – reputational damage – can purportedly be restored through an award of damages which vindicates the claimant’s reputation. This immediate argument may be sustainable, but it risks eliding the deeper principle. The comparison with the unusual tort of defamation does not provide an argument that demonstrates the inadequacy of the damages remedy in all privacy cases.

In many circumstances beyond cases involving publication, the law is asked to provide compensation by way of general damages for non-monetary losses. Consider the hypothetical situation where a child throws a stone towards – and hits – another in the hope of demonstrating his ‘bravery’ to a watching audience. The harm to the injured party is caused as a by-product of the perpetrator’s primary purpose. No one would argue that monetary compensation for the loss of an eye can restore sight to the victim of such personal injury. Nevertheless, assuming that they were awarded at a sufficiently high level, damages would be generally understood to be fair and just satisfaction, and hence an effective remedy. The claimant would of course prefer that the injury had never taken place. It is not clear why privacy harms should be treated differently to this or other forms of irreversible non-pecuniary loss. The fact that there may be a preferable remedy available does not mean that the damages remedy is somehow ineffective.

If this view is correct, then the question before the European Court can properly be seen as one of balancing competing Convention rights. Objections to the imposition of a prior notification requirement, in terms of both the ‘workability’ of such a system and the impact on media freedom, are then not “misplaced” as the applicant contends [9]. Moreover, in such circumstances the contracting State must be allowed a broad margin of appreciation. Once the issue is seen to involve both Article 10 and Article 8, the applicant’s pleadings based on Armoniene v Lithuania (2009) 48 EHRR 53 and I v Finland (2009) 48 EHRR 31 become a misapplication of those cases. It is here also that the fact that there is no uniformity of practice across Convention states becomes important. A variegated picture  – such as is highlighted in the submission of Guardian News and Media Ltd – does not provide a sound basis on which the European Court could justify imposing a particular obligation in the face of the discretion left to States.

None of the above is to argue that a prior notification obligation is necessarily undesirable. The damages remedy is certainly not often likely to be the best or the desirable remedy. In all cases, however, it allows just satisfaction and hence is an effective remedy in law.

Rather, the point here is to contend that it is for relevant domestic authorities, and not the European Court, to determine whether any prior notification device should be introduced at the national level. It may be that this could be achieved by the courts acting alone. Perhaps preferably, any such move should follow on from a considered review of the totality of issues arising in the context of interim relief in cases involving the alleged misuse of private information.

On the question of design, Phillipson has offered some insightful suggestions. These include the limitation of the obligation to publications that would involve the revelation of plainly intimate or sensitive facts (so, not for example in the JK Rowling case), and the possibility of allowing the imposition of aggravated or exemplary damages and/or indemnity costs to punish and deter non-adherence to the notification obligation. The House of Commons Select Committee on Culture, Media and Sport also recommended a damages penalty for breach of a new rule of journalistic ethics to be included in relevant privacy codes. This rule would require prior notification, subject to a public interest override. By virtue of section 12(4) of the Human Rights Act, adherence to the appropriate regulatory rule by the media organisation would then become a justiciable factor in any determination by a judge of the nature of any remedy to be awarded in a privacy case.

It is therefore important and to be welcomed that the Master of the Rolls has recently announced the opening of an inquiry into the practice and procedure of obtaining pre-publication injunctions in privacy cases. The outcomes of that inquiry are anticipated with interest.

Andrew Scott is a senior lecturer in the Department of Law at the LSE. An extended paper developing these ideas, (2010) ‘Prior notification in privacy cases: a reply to Professor Phillipson’, Journal of Media Law, 2(1) is to be published shortly. An earlier version can be accessed here.