affiliated to the International Association of Constitutional Law
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