The current privacy regime is a “negation of the rule of law” because it gives no proper remedy for a breach of privacy, former FIA president Max Mosley has claimed.
This was why he wanted the media to be under a legal obligation to notify individuals if they intended to run stories which would invade their privacy, he told a debate entitled “Injunctions are a necessary evil” organised by the free speech organisation Index on Censorship.
Mosley told a packed auditorium at the London School of Economics on 28 June 2011 that he could not see any problems with gagging injunctions – judges who faced applications for such orders had to bring an “intense focus” on the balance between the right to privacy and the public interest in publishing material.
But while he won record damages of £60,000 in his civil privacy claim against the News of the World in 2008 after it published a story about his sex life, the legal costs left him £30,000 out of pocket and with his privacy irreparably damaged, he said.
“The law is actually weighted heavily in favour of the media because of the Human Rights Act Section 12,” Mosley said.
Claimants seeking injunctions in the England and Wales jurisdiction had to demonstrate to the court that they were more likely than not to win the case, which was quite a high hurdle to cross, he said.
“I want prior notification because if you don’t know, you can’t ask for an injunction … The first I knew of the story [in 2008] was when somebody rang me and said ‘have you seen News of the World? If I had known about it I would have asked the judge for an injunction and almost certainly got it.”
England’s privacy regime was “a negation of the rule of law”, as without prior notification there was no proper remedy to a breach of privacy, he said, adding: “It’s absolutely extraordinary but it’s true”.
Mosley took his argument that the media should be under a legal obligation to give subjects of stories prior notification to the European Court of Human Rights in Strasbourg, but his claim was rejected by its Fourth Section Chamber in May. He has lodged an application for permission to appeal to the Court’s Grand Chamber.
Barrister Hugh Tomlinson QC, at the forefront of the privacy law debate, supported Mosley’s view: “Parliament should be intervening and bringing in a privacy law,” he told the debate, chaired by Index on Censorship editor, Jo Glanvillle.
“The press have talked about how it’s judge-made law; what they don’t mention is that they have been campaigning hard for over 50 years to prevent Parliament from bringing in a privacy law because they rather like the idea of getting away with it with a bit more uncertainty.“
A statutory law of privacy would not be significantly different from present privacy law, Tomlinson said, adding:
“But what would be absolutely crucially important is that it would have a democratic legitimacy; Parliamentarians would have considered it; they would have thought it through; they would have voted on it; and these issues would have been argued out.”
Suzanne Moore, a regular columnist for the Daily Mail and the Guardian, said she did not wish to do away with injunctions altogether but drew attention to the way in which the “notion of privacy has changed between generations” and highlighted the difficulties of regulating the dissemination of material online.
“People do not respect this law. They don’t think Ryan Giggs should get away with it,” she said. When internet users could pass material on in a matter of seconds they would do so, she said.
Moore asked: “How are you going to stop that happening? You’re not… People who are making the law are living in another world, really.”
Solicitor-advocate David Price QC, who acted for reality television star Imogen Thomas in the recent privacy case CTB v News Group, said he favoured a disobedient press at the cost of privacy intrusion.
“I would rather have a feral press, with a disrespect for authority, than a supine press”, he said, adding that if Britain moved to a culture of deference it would do so “at our peril”.
He also drew attention to the difficulties of enforcing injunctions, saying: “We have the ridiculous scenario here where my client cannot refer to the person who is suing her, yet in the promotional material for this particular event we have Hugh Tomlinson described as Ryan Giggs’ lawyer. We get into all these absurd circumstances.”
The panel also highlighted some of the other contradictions in the debate.
Tomlinson described how the press “has been campaigning for a long time so that they have prior notification of injunction applications and they persuaded the Master of the Rolls committee to change the rules so they would have prior notification, but on the other hand for them to give prior notification before publication … they say this would be contrary to the public interest…”
Meanwhile, Suzanne Moore pointed out: “We all know the broadsheets pick up, ironically, two days later, the tabloids’ stories.”
The audience at the debate included Dame Ann Leslie, a foreign correspondent for more than 50 years, who rejected the idea that the press should be more heavily regulated. She said:
“I have worked in over 70 countries. I have seen what happens when the press is being controlled, even if it is not controlled by law, because the consequences of offending not just the government, but powerful and rich people, are so appalling.”
The debate was held to mark the launch of the latest issue of the Index on Censorship quarterly magazine “Privacy is dead! Long live privacy”, which includes an interview with Sir David Eady, who sits in the High Court as Mr Justice Eady, by legal writer and commentator Joshua Rozenberg.
A version of this article also appeared on the PA’s Media Lawyer service and more extracts from the event can be found on Index on Censorship.
Judith Townend is a freelance journalist and PhD researcher examining legal restraints on the media, and also runs the Meeja Law blog. She is @jtownend on Twitter.
Sounds like it was a fantastic debate and wish I had been able to attend. Everyone, less the tabloid press, seems to agree that Max Mosley’s privacy was grossly violated and he deserved to win his claim. What no one seems to be discussing is that his case, as with all those that have gone to Strasbourg, have been about photos or videos. I may be wrong about this, but one of you in the esteemed readership of this blog could surely confirm it.
Contrast this to most of the privacy claims and orders recently heard in the English courts. Aside from the rumoured blackmail cases that should go to the police (think David Letterman in New York), they seem to be about freedom of expression of an individual, usually a woman who had an affair with a celebrity or wealthy man with a reputation to protect. It is the merging of libel and privacy, not photos and privacy. Some of these women have been maliciously libeled and only want to set the record straight. Surely, this distinction is significant.