UK Constitutional Law Association

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Conor Gearty: Max Mosley in Strasbourg

It is right that the feisty and courageous Max Mosley should have lost his recent case at Strasbourg.  He was asking for simply too much.  After all, he had already won his action for damages in the English courts,  having secured a £60,000 damages award from Mr Justice Eady.  Mosley wanted more – in particular he argued for a general presumption that those whose privacy would be affected by a proposed publication should be given prior notification of its imminence so as to give them the chance to start proceedings to prevent it ever appearing.

Whatever one things about the despicable behaviour of the media in this area (on which more presently) the kind of closing off of the stable door before the horse bolts suggested by Mosley would have done far more harm than good.  Gagging orders of the type that once pockmarked the laws of libel and contempt would become far more common than they are now, and not all the claimants would be genuine individuals striving to protect their privacy (think Trafigura and capitalist crooks like the late Robert Maxwell as well as trouser-less footballers and the occasional Marr-man (ie a political commentator required for professional reasons to appear ethically pure).  The chill factor caused by such a new law would dampen down much reporting that was valuable as well as some that was contemptible – it would be a blunderbuss of censorship destroying far more than it targeted.

The European judges have sensibly avoided going down this route.  Their unanimous judgment notes that what Mosley was after went far beyond – and was consciously designed to go well beyond – the confines of his own case: he had won after all.  This being so, the Court could not help but notice that it was being drawn into something which was too close to law-making for its liking.  There was much diversity of practice across Europe and plenty of legislative engagement with the issue in Britain already:  clear indicators that the case was right for the application of the Court’s  margin of appreciation.  (This is the polite way the Court has of brushing of supplicants whose overtures it wants to reject.)

There was also, of course, a free speech point.  The European Convention on Human Rights  protects not just respect for privacy (article 8) but free speech as well (article 10).  The neat way the Court dealt with this was to note what needed to be done to make the prior notification rule fit with article 10.  First there had to be a defence based on the public interest and this would have to include a reasonable belief as to that interest was.  Second, there could be no possibility of punitive fines or a criminal sanction for breach since these would (as the Court put it) ‘create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.’

But with these two free speech qualifications was it worth having the rule at all?

Surely newspapers would just publish and take their chances with the court afterwards, arguing a reasonable belief in the public interest and taking on the chin any damages that might follow if the defence happened to go  wrong?  As the Court observed, even if the pre-notification rule had been in place the News of the World might well have chosen not to inform Mosley – remember all that nonsense about Nazi regalia masquerading as a public interest motive for publication?  So having eviscerated the rule sought in order to make it fit with article 10, the Court stood back, admired its destructive handiwork and concluded that it was something not worth having after all.

Despite the defeat, Mosley emerges from the story as a strong character unafraid of confronting head-on the commercially driven sleaziness of what used to be called the Tabloid press.  Those who do not read these papers do not perhaps appreciate quite how dependant they are on invading the privacy of celebrities (memorably  defined by Chris Patten as ‘Somebody I have never heard off’).  Few politicians in any kind of position of power ever challenge their moral iniquity – even when they are breaking the law or being grossly deceptive to get their story (and it is not just the Tabloids – remember Vince Cable’s entrapment by the Telegraph).  The pressure groups are also invariably the friends of the media – as all eleven interveners were in the Mosley case.  Less appreciated is how close the linkages are between those professional lawyers who argue for free speech in their spare time and for newspapers in court for commercial gain in their professional lives.

The one group who are immune to this pressure are the judiciary: their job is to apply the law – not as they imagine it but as it happens to be.  Parliament has long bottled out of challenging the press directly in a new privacy bill, instead quite deliberately allowing the Human Rights Act to do the work by a process of case-law accretion.  The press tried to exempt itself from the Act when it was going through Parliament – using the then chair of the Press Complaints Commission  Lord Wakeham to table an amendment which would have had this effect. It failed but the press got what is now section 12 instead.  Welcomed by Lord Wakeham at the time, it helped to achieve exactly the opposite of what it intended, a common law of privacy – starting with Douglas v Hello! Ltd in late 2000.

Since then the courts have done their job as well as could be expected, developing an article 8 jurisprudence as consistent with article 10 as can be reasonably managed given the opposite directions in which these two  rights point.

The media is not used to not getting its way.  They have subjected the judges involved in this area of the law to a fierce onslaught of criticism.  The person most often in the firing line these days is Mr Justice Eady, but there have been others in the past and there will be more in the future.  Leading the charge has been the editor of the Daily Mail, Paul Dacre, furious that his writ appears not to run in the courts as easily as it seems to everywhere else.

In all the rage about celebrity privacy, it is only the courts that appear ever to take into account the children who are often the worst victims (in terms of being bullied at school) of revelations about the bad behaviour of a parent: see this recent example of how the courts try to achieve a proper balance in this area.  it seems that newspaper editors have a commitment to children when it comes to exposing supposed child-abusers, but are less fearless when their own wallet is at stake.

Who is to defend the judiciary?  Perhaps an intervention by a team of academics would not be out of place, a joint letter or article in the … papers.  Would it ever be published?  Shall we see?

Conor Gearty is Professor of  Human Rights Law at LSE

5 comments on “Conor Gearty: Max Mosley in Strasbourg

  1. Adam
    May 16, 2011

    Well put and completely on point with respects to the judiciary in this aspect of HR law – there is a much needed intervention in their support and it’s good to hear a dissenting opinion.

  2. Law Think
    May 17, 2011

    I am not sure I agree with the pre-notification point. Initially you say,

    “The chill factor caused by such a new law would dampen down much reporting that was valuable as well as some that was contemptible”

    But you then go on to say that,

    “Surely newspapers would just publish and take their chances with the court afterwards, arguing a reasonable belief in the public interest and taking on the chin any damages that might follow if the defence happened to go wrong?”

    Aren’t these arguments contradicting each other? In any event, perhaps the pre-notification requirement would just “chill” the press with regards to stories of a purely prurient interest, and that would be no bad thing. Having said that, it was obvious that the ECtHR was never going to decide other than the way it did.

  3. LawNovice
    May 18, 2011

    Isn’t there a difference between a public interest in publication, and a public interest in non-notification?

    In cases to do with Global Witness etc. it would be easy to argue that there was a public interest in not giving any pre-notification. It would be much harder to argue that in Mosley type cases.

  4. Gavin Phillipson
    May 20, 2011

    Although I published an article (in the JML) arguing in favour of a notification right in principle, my view on reflection was that this probably wasn’t something that should be imposed by the Strasbourg Court. In my view, largely because of its huge backlog, and consequent need to concentrate on really serious abuses of human rights in Europe, the Court needs to take several steps back from its seemingly endless tinkering with the libel and privacy laws of the contracting states states; the amount of Art 10 defamation judgments the Court gives is huge and nearly all of them simply apply existing principles to the facts, rather than set out new ones. It could do this by making rather more use of the margin of appreciation, when the issue is one of fine balancing between Arts 8 and 10. I also didn’t think that it could plausibly be made a criminal offence.

    That said, I’m not sure I agree with all of Conor Gearty’s – or the Court’s own reasoning. First of all, as the commenters above queried, does a public interest in publication really equate to a public interest in individuals not being notified before stories about their private life are published? I’m not sure that it does. Let’s say (which may be a bold assumption ) that, broadly speaking, we trust the judges not to grant injunctions where there is a genuine public interest (and remember under s 12 HRA they may not normally grant an injunction unless they think the claimant more likely than not to win at trial. If that’s the case, then the only result of prior notification would be that, even if the subject of the story *did* seek an injunction, it would be denied. Of course, the knowledge of possible legal proceedings and costs might ‘chill’ a publisher, but of course, if the story is invasive of privacy, they will probably be ‘chilled’ anyway, at the prospect of a claim for damages. Ironically, while newspapers of course don’t like getting stories injuncted, if they accept the injunction and drop the story, it’s a far cheaper and quicker resolution of the case than a damages claim that goes to full trial (which is another argument for notification).

    Equating the public interest in publication with a public interest in non-notification is to assume that notification will prevent publicattion. But of course it won’t: all it does is allow a court to take a view of the competing rights *before* publication.

    I also don’t see why the court said that there would have to an exception to the notification rule when the publisher reasonably believed that their story served the public interest. If the argument is that only an injunction provides a satisfactory remedy in privacy cases and that an independent court, rather than the self-interested newspaper should decide whether to give the claimant the chance to apply for that remedy, the claimant should still be given that opportunity even where there is a strong public interest in the story. A well advised claimant will then simply not apply for the injunction – or lose if she does.

    If therefore both the ‘chilling’ effect point and the argument that a necessary public interest exception would render the rule futile are both unpersuasive, then that leaves us with the original argument of principle that I’ve already indicated in favour of a notification requirement.

    My conclusion is therefore that judges should do what they can to encourage newspapers to notify by treating failure to do so notify as a an aggravating factor in awarding damages. While the possibility of exmplary damages in such cases may have been (at least for the moment) closed down by the Eady J’s Mosley judgment, a number of lawyers I’ve talked to think that non-notification could be used as one factor in calculating damages. Finally, if we see the argument as being about providing proper protection for Art 8 rights, then the notification requirement should not apply in cases involving corporations, like the notorious Trafigura case.

  5. Pingback: Injudicious Talk? « constitutionunitdotcom

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This entry was posted on May 16, 2011 by in Human rights and tagged , , .
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