The European Court of Human Rights (ECHR) last week dismissed Max Mosley’s legal challenge to force newspapers to warn individuals before publishing articles about their private lives. The ECHR said that any requirement for such pre-notification would have a “chilling effect” on freedom of speech.
Background
In 2008, Max Mosley, former President of Formula One, brought a claim in the High Court against the News of the World for infringement of privacy regarding publication of a front page article on his sex life. Mr Mosley’s claim was successful and he was awarded damages of £60,000.
Mr Mosley pursued the case to the ECHR alleging that the UK was in breach of its obligations under Article 8 of the European Convention on Human Rights to ensure his right to respect for his private life by failing to impose an obligation on the News of the World to notify him in advance of the article so that he could then have sought an injunction to prevent publication.
The Arguments
The UK Government argued, amongst other points, that Mr Mosley had already obtained an effective remedy in the UK in the form of damages and costs.
Mr Mosley argued that notwithstanding this, his reputation was damaged beyond repair and the only effective remedy would have been an injunction to prevent publication, an opportunity which he was denied as he was not given any notification of publication of the article.
The Judgment
The ECHR reviewed both the UK and European law on the right to privacy and the remedies available for an infringement of privacy and agreed with Mr Mosley that “publication of the articles, photographs and video images … had a significant impact on [Mr Mosley’s] right to respect for his private life.”
The court went on to consider the balancing act between the competing rights under Article 8 and Article 10 (freedom of expression). The court noted that in the UK, Article 8 rights are protected by self-regulation of the press via the Press Complaints Commission, an individual’s ability to bring a civil claim for damages and by the ability to seek an interim injunction. The court accepted that “damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information.”
It also bore in mind that the implications of a pre-notification requirement under Article 8 would not be limited to the “sensationalist” press but would also apply to political reporting and serious investigative journalism.
The court considered that the press in the UK sufficiently understood the concept of “private life” to be able to identify when publication could infringe the right to respect for private life and thus when the pre-notification requirement would arise. However, the court was “persuaded that concerns regarding the effectiveness of a pre-notification duty in practice are not unjustified.” In particular, pre-notification would require a public interest exception. Further, any pre-notification requirement would only be “as strong as the sanctions imposed for failing to observe it.” Any such sanctions would have to be sufficient to deter a newspaper from publishing an article without first obtaining the subject’s consent to publication. Whilst significant fines or criminal sanctions could be an option, the court thought that these would be incompatible with Article 10 and would “create a chilling effect.”
The court severely criticised the actions of the News of the World in publishing the article, in particular the photographs and video footage. It recognised that the “private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media.”
However, in conclusion, the court dismissed Mr Mosley’s application and held that there had been no violation by the UK Government of Article 8 and referred to the “chilling effect to which a pre-notification requirement risks giving rise.”
The Master of the Rolls, Lord Neuberger, is currently reviewing the use of super injunctions and is expected to publish his report shortly.