17 February 2010 | By Katy Dowell
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The rise in the number of media interventions in cases appears to be the result of an orchestrated attack by defendant media lawyers on their claimant counterparts.
In reality, however, the interventions come as a number of high profile cases reach fruition, yet again putting the spotlight on the conflicts between freedom of expression and right to privacy.
Last week media lawyers acting in the Binyam Mohamed case wrote to the country’s most senior judiciary, including the Lord Chief Justice Lord Judge and Master of Rolls Lord Neuberger, asking them to reinstate paragraphs of a judgment handed down by them that was allegedly redacted to prevent judicial criticism of the secret services from being publicised (see story).
Doughty Street’s Gavin Millar QC wrote on behalf of Guardian News and Media, British Broadcasting Corporation, Times Newspapers, Independent News and Media and The Press Association.
Geoffrey Robertson QC, also of Doughty Street, wrote on behalf of The New York Times, The Associated Press, Washington Post, LA Times and Index on Censorship, having been instructed by Mark Stephens of Finers Stephens Innocent (FSI).
Brick Court’s Jonathan Sumption QC, instructed to act for Foreign Secretary David Milliband, had until 4pm yesterday (16 February) to respond to their criticisms.
Meanwhile, on a European level discussions around Max Mosley’s case against the UK over privacy laws are beginning to gather pace.
Mosley, the former Formula One chief, won £60,000 in damages from the News of the Worldfor breach of privacy after the Sunday newspaper alleged that Mosley’s sadomasochistic sex session with five dominatrixes had “Nazi connotations”. Mr Justice Eady ruled that the sex orgy involved a portrayal of sadomasochism, but not in relation to Nazism.
In October 2008, Mosley launched a case against the UK in the European Court of Human Rights (ECHR) claiming his right to privacy under article 8 of the Human Rights Act had been breached (see story).
Mosley’s lawyer, Collyer Bristow partner Dominic Crossley (formerly of Steeles Law), has been instructed to seek a ruling from the ECHR that would mean that any journalist writing a story concerning a private matter would need to notify the subject of the story prior to publishing.
FSI’s Stephens has been instructed to intervene on behalf of a collection of European media campaign groups, including the Media Legal Defence Initiative, the European Publishers Council and the International Media Lawyers Association.
Stephens said the group was invited by the president of the ECHR, French judge Jean Paul Costa, to make submissions on the case.
He told The Lawyer: “The European Court’s jurisprudence on libel laws has been gobbledygook. It’s necessary now to understand where the line should be drawn between right to privacy and freedom of expression.”
The Guardian’s director of editorial legal services Gill Phillips and Trinity Mirror’s in-house lawyer Marcus Partington have also made submissions.
Mosley’s lawyer Crossley said: “It’s no surprise that media groups have intervened because it deals with a technical aspect of what the media has to do.”
The media has until 22 February to make its submissions. Then the UK, as defendant, should make its submission.
“We’re keen to hear what the Government has to say,” Crossley said.
The fight to protect freedom of expression from creeping privacy laws has mostly been played out in the pages of the national press. However, the media is beginning to flex its legal muscle through the courts thanks to some savvy in-house lawyers.