Lessons from Mosley v United Kingdom

12-May-2011  |  Copyright & Media Law, Technology, Media & Communications

A victory for free-speech but a Strasbourg seal of approval for the UK's current privacy regime

As has been widely reported, the European Court of Human Rights this week rejected Max Mosley's highly publicised attempts to force the UK to introduce a requirement that media organisations notify individuals in advance of publication of stories relating to their private lives. The Court found that the UK's regime for protecting the "right to respect for private and family life" (created within the margin of appreciation allowed to it) was already compliant with the European Convention on Human Rights and did not need supplementing with the pre-notification requirement.

Reasons for rejecting Mosley's complaint

The Court gave three reasons for rejecting Mosley's complaint:

  • The UK already has measures in place to ensure protection of Article 8 rights, from the PCC's self-regulation of the press, to the remedies available in civil proceedings (Mosley himself was awarded £60,000 in damages and £420,000 in legal costs), interim injunctions and the Data Protection Act.
  • The UK has a wide margin of appreciation afforded to it in deciding how it protects privacy, and the Court will not interfere with decisions made within it. The existing system does not require prior notification and proposals to introduce one had been rejected by a parliamentary Select Committee. Mosley could not identify any other signatory to the Convention in which a pre-notification requirement as such is imposed and there was a consensus against introducing one. It was, therefore, legitimate for the UK not to introduce such a requirement.
  • The Court had two concerns about the clarity and effectiveness of a pre-notification duty. Firstly, it would have to be subject to a widely defined public interest exception, which would be based on newspapers' "reasonable belief" that the public interest required no notification. Here, it was "not unlikely" that the News of the World would have been able to take advantage of the defence. Secondly, and more importantly, the Court recognised that a pre-notification requirement would only be as good as the sanctions imposed for failing to observe it. The News of the World may have taken the risks of sanctions here anyway, just as they had taken the risk of Mosley obtaining an injunction against and damages from them. Punitive fines or criminal sanctions could be introduced to encourage compliance but could be incompatible with Article 10, as they would create a "chilling effect" on political reporting and investigative journalism.

The wider lessons from the ruling

The ruling is, undoubtedly, a victory for press freedom: as the Court recognised, a pre-notification requirement "risks giving rise" to a chilling effect on freedom of expression, particularly in relation to journalism of a less "casual and cavalier" nature than in issue here (as Mr Justice Eady described the News of the World's conduct). It was for this reason that the Court recalled that "the introduction of restrictions on [political reporting and serious investigative journalism] requires careful scrutiny", which it duly undertook.

However, we cannot take from the judgment that the Court will change its approach in privacy v freedom of expression cases to become more in favour of the latter. The Court did recognise that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (echoing comments from the English Court of Appeal) and that such news does benefit from the protection of Article 10. This should not, however, be taken to suggest that the Court might be more willing to accept there is a sufficiently strong public interest in such cases to outweigh Article 8 rights. The Court made it clear that sensational and titillating press reports do not enjoy "robust protection" under Article 10 saying, "in such cases, freedom of expression requires a more narrow interpretation".

The Court reaffirmed that the "public interest" in publication which newspapers must demonstrate to outweigh Article 8's protection for private and intimate information is a difficult standard to meet. To do so, publication of the private information must be "in the interest of the public" i.e. capable of contributing to a debate of general public interest in a democratic society (which would be more likely in cases involving politicians' private lives than, say, footballers' private lives). These kind of publications must be distinguished from those which make "tawdry allegations" about private lives, intended to "titillate and entertain" and aimed at satisfying the curiosity or interest of readers. They do not meet the standard.

More generally, the ruling can be taken as a stamp of approval for the way that the UK currently protects Article 8 rights. The Court accepted that the current system in the UK fully reflects resolutions of the Parliamentary Assembly of the Council of Europe on media, human rights and public figures' rights to privacy. This, of course, may be a good or a bad thing, depending on the side of the debate on which one sits.

Contacts Niri Shanmuganathan, Adam Rendle