The European Court of Human Rights (ECHR) won favour with newspaper media lawyers last week after it rejected a bid by former International Automobile Federation (FIA) president Max Mosley to force newspapers to warn people beforehand if they are going to publish details of their private lives.
The ruling throws into focus the acute legal tension between the right to privacy and right to freedom of expression and gives an insight into how Strasbourg thinks domestic courts should balance the conflicting notions.
Blackstone Chambers’ Michael Beloff QC comments: “This is about an international convention and how the law’s balanced throughout the EU.
“The main message they’ve determined to come to is to prioritise freedom of expression over the right to privacy.”
Had the ECHR ruled in favour of Mosley, says Davenport Lyons partner Robin Shaw, who is regularly instructed by Private Eye, “the law would likely have become unworkable and would have to led to a wholly disproportionate interference with the right to freedom of expression”.
The decision ends the latest chapter in Mosley’s long-running dispute with the Government that has its roots in a News of the World (NoW) story.
Mosley instructed Collyer Bristow partner Dominic Crossley (then at Steeles Law) in October 2008 to pursue his European case against the UK Government. This came after Crossley secured a £60,000 payout for Mosley from NoW. In the original privacy case against NoW, Crossley instructed James Price QC of 5 Raymond Buildings (now 5RB) for Mosley.
Farrer & Co partner Benjamin Beabey instructed Mark Warby QC of the same set for NoW in the original case.
Mr Justice Eady awarded the precedent-setting package when he ruled that NoW had breached Mosley’s privacy rights by publishing pictures of him involved in a sadomasochistic sex session (The Lawyer, 24 July 2008).
At the ECHR Crossley turned to Blackstone Chambers’ David Pannick QC to lead 5RB’s David Sherborne for Mosley. The Treasury Solicitor instructed the first Treasury counsel James Eadie QC of Blackstone for the defendant.
What began as a lurid tabloid tale turned into a legal nightmare for Fleet Street lawyers.
The implications of the ECHR case were such that it attracted interventions from media institutions across Europe.
These included submissions from Finers Stephens Innocent on behalf of the Media Legal Defence Initiative, Guardian News & Media, the Romanian Helsinki Committee and the Bulgarian Access to Information Programme Foundation.
The Strasbourg court’s ruling has been welcomed as a reaffirmation of the domestic courts’ stance on the Human Rights Act.
Taylor Wessing head of trademarks, copyright and media Niri Shan says: “It confirms what the court has previously said – that stories need to show public interest.”
It also means that the debate around super-injunctions will persist unless Parliament attempts to intervene.
The ECHR said the domestic legislation already contains measures within it to protect Article 8 rights (the right to privacy) from the self-regulating media, adding that there are mechanisms within the civil courts that allow for effective means of redress.
The UK courts are not under any obligation to interfere with decisions regarding privacy because UK legislation has a wide margin of appreciation afforded to it when deciding how to protect privacy, the court added.
If such a pre-notification obligation was to be included under Article 8 of the European Convention on Human Rights it would give rise to the risk of a chilling effect on investigative journalism.
This, the court concluded, would not be in the public interest when it came to stories concerning politics and serious investigative journalism.
“However meritorious the applicant’s own case may be, the court must bear in mind the general nature of the duty called for,” the court ruled. “In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case, but extend to political reporting and serious investigative journalism. The court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny.”
Furthermore, the court cautioned that any pre-notification obligation would be subject to a public interest exception rule. Also, sanctions would need to be established to fine those who breach the rules.
Any such sanctions, the court warned, could be found to be conflicting with Article 10 (the right to freedom of expression) if challenged in court by the media.
The emphatic rejection of Mosley’s claim will not add to substantive law in the UK and therefore will have no material effect on how the courts interpret the convention.
While newspaper lawyers have welcomed the decision, it leaves them no better off when it comes to super-injunctions, which have become a major story in the UK with complaints that the judiciary is introducing a privacy law through the back door.
Lawyers say that if changes need to be made and legislation tightened, it must be done by the ruling executive.
Payne Hicks Beech partner Sarah Webb comments: “If Parliament’s really unhappy with the way the courts are interpreting the Human Rights Act, they’ll have to do something about it or else leave it to the judiciary, but don’t undermine them from the sidelines.”
With the Master of the Rolls Lord Neuberger due to feed back on the matter in the coming weeks, and the Metropolitan Police’s phone-hacking judicial review already underway, the debate is set to escalate further.