Max Mosley has been unsuccessful in his long running campaign to compel the English press to give advance notice of threatened invasions of privacy. The Fourth Section of the Court of Human Rights today gave judgment in the case of Mosley v United Kingdom (Judgment of 10 May 2011). After a careful and detailed consideration of the relevant background and law the Court concluded that, having regard to the chilling effect of a pre-notification requirement in privacy cases and the margin of appreciation, there was no violation of Article 8.
Background
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.
The Judgment
The Court began by considering admissibility. It held that the complaint was admissible and that Mr Mosley was a “victim” under the Convention. It accepted that “no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant” [72]
In relation to the merits of the case, the Court emphasised
“the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect … The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States’ margin of appreciation” [107]
After dealing with the arguments of the parties (and the media interveners) on the merits, the Court set out an important summary of the relevant “General Principles” ([106] to [117]). Among other matters, it noted “the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law” [112] but went on to reiterate the distinction between
“reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life … In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life … . Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation” [114]
The Court also drew attention to the immediate and powerful effect of the publication of photographs, particularly where the images contain very personal and intimate information [115]. Finally, under this heading
“the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court . This is especially so as far as the press is concerned… however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest” [117].
In relation to the facts of the case, the Court began by noting that there were measures in place to ensure protection of Article 8 rights [119]. It also observed that the previous case had implicitly accepted that damages provide an adequate remedy for violations of Article 8 rights by newspaper publication [120].
The Court went on to give careful consideration to the margin of appreciation noting a number of relevant matters:
- The fact that the Culture Media and Sport Committee had rejected the argument in favour of “pre-notification” [122]
- The potential impact of such a requirement beyond the circumstances of the applicant’s case [123]
- The diversity of practice among member states – with a consensus apparently against a pre-notification requirement [124]
The Court rejected the argument that the concept of “private life” was insufficiently clear to identify when a pre-notification requirement would arise and suggested practical difficulties about identifying who the requirement would apply to [125].
It did, however, sympathise with two specific concerns about the effectiveness of a pre-notification requirement. First the “public interest” exception which would be required which, the Court noted, would probably have been invoked by the News of the World in Mr Mosley’s case ([126] to [127]). Secondly, as more importantly, they noted that
“any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification” [128].
It noted that punitive fines or criminal sanctions would run the risk of being incompatible with Article 10.
In conclusion, the Court noted that the conduct of the News of the World was “open to severe criticism” [130] and noted the fact that the private lives of those in the public eye have “become a highly lucrative commodity” [131]. However, looking at the broader impact of a pre-notification requirement, it concluded
“The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement” [132].
Accordingly, the Court concluded that there has been no violation of Article 8 of the Convention by the absence of such a pre-notification requirement in domestic law.
Comment
This decision has been welcomed by the media and by free speech campaigners (see, for example, Index on Censorship). The emphasis on the “margin of appreciation” – the latitude allowed to Member States in their observance of the Convention – will be welcomed by the UK Government. The evident care with which the Court balanced and analysed the issues will also be welcomed by its supporters. The judgment acknowledges the “privacy” concerns of those, like Mr Mosley, who are victims of tabloid intrusion whilst, at the same time, recognising the importance of the right of the press to contribute to debates of general interest.
As predicted by many observers, in the end practical considerations were decisive. Any effective pre-notification regime would require powerful civil or criminal sanctions which risked having an adverse impact on press freedom beyond the limits of “entertainment journalism” and the trade in the private lives of celebrities. As a result, the Court unanimously rejected Mr Mosley’s application.
Mr Mosley has, however, not given up yet. His solicitors have put out a Press Release which quotes him as saying
“I am disappointed at today’s judgment, because I think that there is widespread recognition that privacy is fundamental to the way we live our lives. The potential for intrusion into our privacy is enormous and we need proper protection.
My current intention is to continue with my application by way a request to the Grand Chamber and I will be discussing this with my lawyers over the next few days.”
Two further points. First, it is noteworthy that the Court did not specifically consider the possibility of “statutory press regulation”. The Culture, Media and Sport Committee recommended that the PCC Code should contain a pre-notification requirement in the form of an opportunity to comment (see para 91 of its report on “Press standards, privacy and libel”). If statutory press regulation were to be introduced then such a requirement could be included in a statutory code. The OFCOM code, in effect, contains a pre-notification requirement of the type which Mr Mosley was arguing for. A statutory press regulator could impose a similar requirement on newspapers – with appropriate “carve outs” for public interest and regulatory sanctions for non-compliance.
Finally, careful attention should be paid to the detail of the judgment and the general points made about the need to protect private life from press intrusion. The press won the battle but the judgment confirms that it has lost the “privacy war”. The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved [114]. The judgment provides no support for critics of the new of law of privacy in general or the decision in the Mosley case in particular. It repeats the point that Article 10 does not prohibit “prior restraints on publication” and that
“prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest” [117].
Although the Court of Human Rights has rejected “compulsory pre-notification” it provides no support for the current critics of privacy law.
Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee. He is also a founding editor of the UKSC Blog.
The right decision in the end. Hoorah for the Court of HR!