Strasbourg Hearing: Mosley v United Kingdom – Edward Craven

On Tuesday the Fourth Section of the European Court of Human Rights heard the application in the case of Mosley v United Kingdom. At the hearing oral submissions were presented by Lord Pannick QC on behalf of the applicant, Mr Max Mosley, and by James Eadie QC on behalf of the United Kingdom government. In addition, the Court also received written submissions from the parties and from Geoffrey Robertson QC, Heather Rogers QC and Lord Lester QC on behalf of various media interveners.

The written submissions were the subject of an earlier blog post At the end of the hearing judgment was reserved and is unlikely to be delivered for several months. There is a webcast of the hearing (best viewed using internet explorer).

Regular readers of the Inforrm blog will be familiar with the background to Mosley’s application, which has also been widely reported in the British media. In March 2008 the News of the World (“NOTW”) ran a front-page story revealing that Mr Mosley had taken part in a sado-masochistic “orgy” with five prostitutes. The article contained salacious details about the sexual activity that had apparently taken place and incorrectly stated that there had been a Nazi theme to the encounter. Various photographs of Mr Mosley in flagrante accompanied the article and a video of the affair was also made available on the NOTW’s website. The photographs and video had been covertly recorded by one of the participants, following a secret deal she had made with the NOTW to sell her story.

Mosley subsequently brought a claim against the NOTW for misuse of private information. At a trial before Eady J the NOTW was found liable and Mosley was awarded damages of £60,000 for the serious breach of his privacy. However it was obvious that no amount of damages could restore to Mosley that which he had actually lost, namely the ability to keep details of his sex life out of the public domain. Mosley was understandably aggrieved and took issue with the fact that under English law there is no requirement of “pre-notification” – in other words, a newspaper intending to publish private information about a person is under no duty to notify that person before going to press. (In his case Mosley had only learned of the publication after being contacted by a colleague who had seen a copy of the newspaper on the morning that it came out.) He therefore lodged an application with the Strasbourg Court, contending that the UK’s failure to impose a requirement of pre-notification upon the News of the World had violated his rights under Articles 8 and 13 of the Convention. He argues that pre-notification should be required in all cases where a newspaper knows (or ought to know) that if the subject of an intended publication were to be informed of the newspaper’s intention to publish he may apply for and successfully obtain an injunction on Article 8 grounds. An exception to this general requirement would exist where the newspaper had a good reason for not giving notification in advance of publication.

Issues for the Court

Before the hearing the Court identified three questions that it required the parties to answer:

(1)    First, having regard to the award of £60,000 can the applicant still claim to be a victim in respect of his Article 8 complaint?

(2)    Secondly, has there been a failure to protect the applicant’s right to respect for his private life, contrary to Article 8 of the Convention? In particular:

(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 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?

(3) Thirdly, are privacy damages (such as £60,000) adequate remedies for invasion of privacy and has Mr Mosley exhausted his domestic remedies?

The Oral Submissions

Mr Eadie QC made the first submissions on behalf of the UK government. He began by explaining that the case was concerned with the “structural balance” that had to be struck between the rights protected by Article 8 and the rights protected by Article 10. He then set out four reasons why, in his submission, this was an issue on which the Court must afford a broad margin of appreciation to the United Kingdom:

1.    First, the application concerns the issue of positive obligations owed by a state under Article 8, meaning that a wider margin of appreciation is appropriate. Moreover, the applicant contends that the government is under a duty to impose obligations upon one private individual in respect of his conduct towards another private individual. This also pushes the case towards the “lighter touch” end of the spectrum.

2.    Secondly, there are important interests on both sides of the issue. Striking the balance between these interests involves a delicate exercise of judgment by each Contracting State. It is well established that restrictions upon free expression can only be justified if a state has “convincingly established” the necessity of such a restriction. There is a particular need for caution in view of the potential chilling effects of any restraint that operates pre-publication. These factors militate in favour of a broad margin of appreciation.

3.    Thirdly, the judgment that must be made about where to strike the balance may reasonably be amenable to different answers depending upon the history, culture and conditions of different Contracting States.

4.    Fourthly, a comparative analysis demonstrates a wide diversity of approaches to the question of prior notification across different jurisdictions. Me Eadie submitted that this is important both (a) in establishing that a broad margin of appreciation is appropriate; and (b) in demonstrating that the United Kingdom and many other states have for many years had structures that operate satisfactorily without any system of prior notification. On this point Mr Eadie referred to the fact that there is no requirement of pre-notification in many Convention states – France, Germany, Sweden, Hungary, the Netherlands and Belgium are all examples. Moreover the UK Government and the House of Commons Culture, Media and Sport Select Committee have both previously declined to support the introduction of a general pre-notification requirement.

Mr Eadie emphasised that the question for the Court is not whether a prior notification requirement would be useful solely from the perspective of Article 8. Nor is the question whether a pre-notification requirement was generally desirable. Instead, the sole question to be decided is whether such a requirement is necessary under Article 8 when balanced against Article 10.

He then went on to argue that UK law already affords adequate protection to privacy rights. An individual’s Article 8 rights are already protected by the cause of action of misuse of private information and if a breach of those rights is established following a trial then the court may award substantial damages. As with many other aspects of tort law, fair and effective satisfaction for a past wrong is achieved by an award of compensatory damages. Furthermore, the law does enable individuals who are concerned that their privacy has been infringed to obtain an injunction in certain circumstances. This remedy is not merely hypothetical, as several recent cases have demonstrated. Thirdly, there are other remedies available to a person in the applicant’s position which can enable him to vindicate his privacy rights. For instance, it may be possible to bring a claim under the Data Protection Act or to pursue a grievance through the Press Complaints Commission (“PCC”).

Mr Eadie made four final submissions:

1.    First, the court must bear in mind the nature of the question it is required to decide. The question is whether, applying articles 8 and 10, a general pre-notification requirement is necessary.

2.    Secondly, the government disputes the applicant’s submission that there is universal support for the proposition that only a prior injunctive remedy can provide an effective remedy in cases involving a breach of privacy. Academic commentators do not accept this and previous ECHR jurisprudence does not come close to making this suggestion.

3.    Thirdly, there are real and obvious dangers inherent in any system of prior restraint upon publication. The imposition of a prior notification duty would, Mr Eadie argued, risk a “serious chilling effect on the freedom of the media and the freedom of the public to express themselves”.

4.    Fourthly, there would be “very significant difficulties in seeking to formulate any duty” of the kind sought by the applicant. Mr Eadie drew the Court’s attention to a range of practical issues that he said the applicant had failed to answer: How should the law define who is subject to the duty? Should it be confined to commercial organisations or extended to everyone, including private individuals? How should the law identify the person to whom the duty is actually owed? How is the duty actually triggered? What period of advance notification would actually be required? What sanctions should be imposed for breach of the duty? And surely there is a risk that imposing a general requirement of prior notification requirement is likely to spawn significant satellite litigation?

Lord Pannick then responded with his submissions on behalf of the applicant. A full note of those submissions was posted earlier today.  He began by setting out six key propositions:

1. “Privacy once breached, cannot be restored by court order.” Maintenance of privacy vitally depends on keeping confidential material outside of the public domain. Therefore the only effective remedy for an invasion of privacy is the granting of an injunction.
2. If the applicant had known that the newspaper intended to publish a story about his sex life, he would have successfully applied for an injunction.
3. In this case the newspaper had deliberately avoided notifying the applicant about their intention to publish details of his sex life because it wanted to prevent him from seeking and obtaining an injunction.
4. The newspaper was well aware that once a story is published very few victims are likely to sue for breach of privacy. It takes a determined and wealthy litigant to go through the ordeal of a High Court trial where embarrassing personal behaviour is “reheated” for detailed public examination. The cost risks are great and even successful claimants will often end up out of pocket.
5. It follows that whether the subject of a story is able to seek and obtain an effective remedy depends upon the willingness of the newspaper to notify him in advance of publication. However the more flagrant the breach of privacy (and therefore the stronger the prospects of obtaining an injunction), the less willing the newspaper will be to give advance notification. This means that the party that is breaching privacy is also the party that is in the position of judging whether the protection of human rights and the administration of justice should be frustrated. In other words, “the wrongdoer is judge in its own cause”.
6. The newspaper’s rights to free expression are fully protected by the Human Rights Act – an application for an injunction to restrain publication does not threaten these rights. No pre-publication injunction will be granted unless the court is satisfied that the applicant is likely to establish at trial that publication should be restrained. The newspaper therefore has no valid reason for seeking to prevent the court from hearing an application to protect privacy. The desire to prevent an individual from obtaining an injunction is not a valid reason for these purposes.

Lord Pannick rejected the government’s argument that the applicant was not a “victim” since he had received an adequate award of damages. The whole point, said Lord Pannick, was that damages did not provide an effective remedy – the only effective remedy was an injunction. Yet the absence of a duty to notify the claimant before going to press robbed the claimant of any realistic opportunity of obtaining an injunction. In these circumstances the applicant had been deprived of the only effective remedy available and no amount of damages could obviate this basic fact.

On the question of whether the state was under a positive obligation in this context, Lord Pannick referred the Court to Cumpana v Romania (2005) 41 EHRR 200. In that case the Court held that Article 8 may require the adoption of positive measures designed to ensure effective respect for private life, even in the sphere of relations between individuals and even in situations where Article 10 is also engaged. He then took the Court to the decision of the Grand Chamber in Bladet Tromso and Stensaas v Norway (application no. 2198093) In that case the Court stated that the press are protected under Article 10 only if they are “acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalists”.

Lord Pannick drew the Court’s attention to the evidence given to the Culture, Media and Sport Select Committee in April 2009 by Paul Dacre, the Chairman of the Editor’s Code Committee of the PCC and editor of the Daily Mail. Mr Dacre stated that in practice in 99% of cases prior notification will be given by a newspaper. According to Lord Pannick, this was a clear recognition of the fact that basic journalistic ethics require nothing less. The statistic also belies the government’s argument that a legal requirement of prior notification would have a seriously chilling effect upon press freedom and free expression, since it is clear that in the vast majority of cases this is exactly what the press do anyway. In any event, Lord Pannick pointed out that in the context of broadcasting regulation the Ofcom Code imposes a duty on a broadcaster before transmitting a factual programme to offer an opportunity to contribute to the broadcast to anyone whose omission could be unfair. Failure to abide by this requirement may result in the imposition of a substantial fine by the regulator. If such a rule is practical in the context of broadcasting, why should it be impractical in the context of newspapers?

Questions from the Court

In accordance with its standard practice, the Court only asked a limited number of questions of the applicant. Judge Björgvinsson began by asking about the practical effectiveness of injunctions in the internet age:

“What is the real effectiveness of having injunctions imposed in such situations? …There always seems to be with modern technology so many different ways to leak out a story if one wants to do that regardless of an injunction.”

Lord Pannick replied that there were a considerable number of cases where injunctions have been granted and where the privacy of the individual has thereby been effectively protected. Mr Eadie agreed that injunctions were one important strand in the range of remedies available in domestic law; however he reiterated the government’s argument that damages were also provided an adequate remedy whenever an individual’s privacy rights were breached.

Judge Bratza then asked two questions. One concerned the availability of exemplary damages in domestic law for knowing violations of privacy (counsel explained that on according to recent domestic authority exemplary damages were unavailable in privacy cases). The other question was directed to the applicant and concerned the form of sanctions that would be needed under any prior notification regime:

“The applicant…argues that the obligation of pre-notification for which he contends should be backed by sanctions, criminal, regulatory or other. Leaving aside criminal sanctions, what regulatory or other sanctions would in his view provide the requisite protection for his rights under Article 8? In particular, would it be enough in his view that as recommended by the parliamentary Select Committee the Code of Practice were amended to include a requirement of prior notification and that non-compliance with such a requirement would be treated as an aggravating factor in assessing damages for a breach of Article 8 rights?”

Lord Pannick’s response on behalf of Mr Mosley was that an amendment to the PCC’s Code would not suffice. The minimum requirement for an effective remedy is a regulatory body that has a power to impose penal sanctions by way of a fine. This is exactly the system that operates in broadcasting sphere with Ofcom. In Lord Pannick’s submission, the government had failed to provide a satisfactory explanation why a system which is satisfactorily applied to broadcasters is completed unsuited to print media.

Conclusion

The application deals with difficult and important questions regarding the correct balance that must be struck when the rights protected by Articles 8 and 10 collide. The British tabloids’ voracious appetite for kiss-and-tell scandal and celebrity tittle-tattle enjoyed is well known, as is their reaction to legal restrictions upon their ability to satisfy that appetite. In addition to the arguments set out above, the media interveners have also challenged the proposition (accepted by the Court in its recent case law) that protection of “reputation” falls within the scope of Article 8 at all. The stage is therefore set for an important ruling from Strasbourg on the relationships between privacy, reputation, free speech and an open press in a modern European democracy.

Edward Craven is trainee barrister at Matrix Chambers.