News In Focus
10 May 2011
Mosley loses ECHR privacy case
The right to privacy under the European Convention on Human Rights does not require a legal rule that a newspaper should notify someone in advance when it intends to publish material concerning their private life.
Judges at the Human Rights Court gave a unanimous ruling today that UK law was not in breach of the Convention, when they dismissed a case by former Formula 1 boss Max Mosley relating to the exposé of his sexual activities published in the News of the World in 2008.
The newspaper had published clandestine photographs and its website had a link to a video also obtained clandestinely. Mr Mosley subsequently obtained £60,000 damages for breach of his privacy, and a final injunction. However he claimed that UK law was defective in not imposing a legal duty to notify him in advance in order to give him the opportunity to seek an interim injunction, and violated his right under article 8 of the Convention to respect for his private and family life.
He argued that it was for the courts to decide where the balance lay between article 8 and the right under article 10 to freedom of expression; and once lost, privacy could not be regained.
The court said that as Mr Mosley had won a court award, its approach should be to have regard to the general framework for balancing article 8 and article 10 in the UK.
Sanctions
It was relevant to consider the sanctions available for publication in breach of the right to privacy in the UK, through the Press Complaints Commission and the availability of a right to damages: awards such as in the present case, with costs, could reasonably be expected to "have a salutary effect on journalistic practices". The highly personal nature of the revelations in this case caould have no significant bearing on the margin of appreciation afforded to the state, given that the requirement contended for would have an impact beyond the circumstances of this case.
There was no such requirement in any other Convention state, and such consensus as there was appeared to be against a pre-notification requirement. And there were justified concerns about the effectiveness of such a requirement, given that it was generally accepted that there had to be a public interest exception, and a requirement would only be as strong as the sanctions for not observing it. Punitive fines or criminal sanctions would risk contravening article 10, and the threat of them would 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".
Having regard to these considerations, article 8 did not require a legally binding pre-notification requirement.
Click here to access the opinion.