The Court of Human Rights will give judgment in the case of Mosley v United Kingdom on Tuesday 10 May 2011. The application was heard on Tuesday 11 January 2011. The central question was whether the United Kingdom had a positive obligation under Article 8 of the Convention to protect Mr Mosley’s privacy by providing for a legal duty on the News of the World to warn him in advance of publication in order to allow him to seek an injunction.
At the time of the hearing we posted Lord Pannick’s speech on behalf of Mr Mosley. We also had a post on the hearing itself by Edward Craven. We have also posted about the Media Submissions to the Court. More details about the case can be found on our “Table of Forthcoming Cases“.
Legal opinion is split as to the likely result. As usual, the Court gave little away during the hearing but the practical difficulties of a “pre-notification requirement” are obvious. The House of Commons Culture Media and Sport Committee, in their 2010 Report concluded that “a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a “public interest” exception”. A judgment in favour of Mr Mosley would undoubtedly produce another outburst of “Euro-phobia” from the press with renewed demands to abandon the Convention on Human Rights. Mr Cameron would probably feel a little queasy. It is possible that the Strasbourg judges will be sensitive to the concerns of the British press – carefully summarised in the intervention by the Media Lawyers’ Association – and will find that any the “positive obligation to protect privacy” was not breached by a failure to notify.
On the other hand, some privacy campaigners were encouraged by the questions which were asked during the hearing – Judge Bratza asking about the kind of regulatory sanctions which might be put in place. Mr Mosley was careful not to suggest any specific mechanism for implementation but suggested that the mininum requirement was a penal sanction in the form of a fine. It is possible that the conduct of the English tabloid press – very intrusive by European standards – will lead to the Court finding a breach of Article 8 and requiring the Government to take effective measures to ensure pre-notification.
This is could be the most important (and controversial) Strasbourg privacy judgment of the year. And any judgment might not be the end of it – the losing party could seek to have the matter referred to a “Grand Chamber” hearing.