Opinion: “Mosley loses, but this does not mean it’s a victory for the press” – Leon Glenister

15 05 2011

Max Mosley has lost the latest battle in his ongoing war with the press on privacy. He had argued before the European Court of Human Rights (‘European Court’) that where a newspaper published private information on an individual they should be forced to notify the individual concerned prior to publication. The court rejected such a ‘pre-notification requirement’. This should, however, not be seen as a victory for the press or free speech. Rather, it is more of an unsurprising application of the principles of the European Court.

The Mosley judgment was inevitable because of the nature of the European Court, a supervisory body on the European Convention on Human Rights whose decisions echo around Europe. To ensure states have discretion in interpreting the Convention to suit their own laws, they are given by the Court a ‘margin of appreciation’ to decide on how they implement the Convention. This was crucial to the decision to reject a pre-notification rule, and proved to be the foe of Mosley.

Two big factors were at play which meant that any such rule fell within this margin. Firstly, there was no uniformity of approach between European states in relation the rule, meaning a wider margin was given. Secondly, a House of Commons Select Committee had already considered this matter and decided against such a legal requirement – it was therefore clear that the UK was not ignoring the issue altogether. In sum, asking the Court to find a pre-notification rule was required to guarantee an individual’s right to privacy was tantamount to asking them to legislate such a rule for the whole of Europe. Clearly, this was never going to happen, and would have been wildly beyond their remit as a body.

Thus all we can take from the case is that the European Court were not in a position to require a ‘pre-notification rule’ to protect Mosley’s privacy. This is very different from the Court deciding such a rule, particularly if limited in scope, would breach any right to free speech. Therefore, the decision should not force us to dismiss the merits of the rule.

The Government’s and newspapers’ main argument centred on the chilling effect of the pre-notification rule, that is, the press would be deterred by costly legal battles and refrain from publishing controversial stories. But why is this chilling effect such a bad thing when it comes to celebrities? What does the public gain from them? In their seminal work, Warren and Brandeis, two US Supreme Court judges who championed free speech, warned against “idle gossip” procured only by intrusion into the domestic circle. They warned against its consequences – on an individual level a “harm beyond mere bodily injury” and on a general level a lowering of social morality. This remains true today.

A follow-on argument, cited more in media than in the case itself, is that pre-notification creates a risk that true public interest journalism would be stifled. Such an argument was made by Roy Greenslade who cites in particular the Daily Telegraph expose on MPs’ expenses. This is an unapt example to use, because a judge hearing an application for an injunction on such a story would clearly find the information in the public interest and allow publication. Indeed, Mosley argued in the ECtHR that there should be a public interest exception to pre-notification anyhow. Therefore we should not be worried about any chilling effects of such a rule.

What would be gained by such a rule? We would see protection for individuals against gross invasions of their privacy. The effects of these invasions should not be underestimated – Mosley has cited individuals who have committed suicide as a result. To put this on a less celebrity level, would you object if your annual wage was leaked to the local press and they wanted to publish it? Maybe, maybe not. What if your ex-partner had a nude photo of you which was about to published? Surely you would expect notification at the very least to try and prevent publication.

There is something special about the publication of private information: once private information is published it cannot be made private again. This is unlike libel which can be corrected. Therefore it becomes extremely important to decide on whether there is an overriding interest in revealing private information before it is published, a decision that should be trusted to a court.

The Mosley decision has been handed at a time when privacy and free speech have been in sharp contention with the recent super-injunction debate. However in this battle between competing rights, the Mosley decision should not be seen as a victory for press, rather a case of the European Court being constrained by its own principles. Just because the power of the European Court is limited does not mean we should dismiss the merits of Mosley’s law altogether – there are plenty of other ways it could be implemented, such as in the PCC Code which the Select Committee recommended.

**The arguments on the pre-notification rule have been explored in an earlier Law Think blog post.**

This post originally appeared on the Law Think blog and is reproduced with permission and thanks.


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