Tuesday, May 10, 2011

Mosley loses at ECHR

Max Mosley has lost his case at the European Court of Human Rights. The Court's press release on the judgment is here (links to downloadable pdf).  The judgement in full is also available but since the links are dynamic the simplest way to find it is to type "Mosley" into the Court's HUDOC search portal.
(Update: Scribd has a copy of the decision now)

It's an interesting decision ultimately concluding that Mr Mosley's request for a prior notification regime, whereby subjects of press stories would be informed in advance of publication, would have a disproportionate chilling effect on freedom of the press.  It's not entirely bad news for the applicant Mr Mosley, however, as the Court ruled that his case was admissible, disagreeing with the UK government's argument that it was ill founded. They also agreed with Mr Justice Eady's decision in the UK High Court that there was no public interest in the News of the World's publication, in print, of stories about Mr Mosley's sex life, in addition to audio and video recordings of his activities and that on the facts of the case there was a clear invasion of privacy under Article 8 of the European Convention on Human Rights.

Nevertheless the key question they had to decide was whether a pre publication notification regime would be required to facilitate the balance between privacy (Article 8 of the Convention) and free speech (Article 10). And the answer was no.

Sensibly they say (paragraph 114) that sex stories do not attract the same protection as "reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society" but that the Court must be careful about imposing restraints on speech (paragraph 116); particularly so about prior restraint (para 117).

At paragraph 119 - 121 they explain that the UK remedy of post publication damages can be reasonably expected to act as a check on press behaviour and that the ECHR precedent dictates that damages provide an adequate remedy; also that in making the decision they need to be particularly aware of the wider implications:
"While the specific facts of the applicant’s case provide a backdrop to the Court’s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. 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."
There follows an interesting discussion on the "margin of appreciation" - the freedom of the State to implement it's obligations under article 8 in any ways it sees fit. The wide diversity of practice amongst member states in the balancing of article 8 privacy and article 10 speech requirements of the convention means there is no general consensus in this area and therefore no general obligation to mandate a prior notification regime.
"124.  Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62-63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56-59 above). The Court therefore concludes that the respondent State’s margin of appreciation in the present case is a wide one."
Crucially, I think, on the question of the clarity and effectiveness of a pre-notification regime, (paras 125 - 129) they suggest that it can probably be defined clearly because the concept of "private life" is well understood (even by journalists!) but 
  • it would have a de facto chilling effect on freedom of the press and 
  • even if such a scheme was in place the News of the World would still have published their stories about Mr Mosley because they had unjustifiably convinced themselves that there was a Nazi element to the affair
  • the effectiveness of a pre-notifcation scheme would depend on associated sanctions for breaching it -  punitive measures 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."
They conclude:
"iii.  Conclusion
130. As noted above, the conduct of the newspaper in the applicant’s case is open to severe criticism. Aside from publication of the articles detailing the applicant’s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant’s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World
131.  The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).
132.  However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.
1.  Declares the application admissible;
2.  Holds that there has been no violation of Article 8 of the Convention."
It's a thoughtful, carefully constructed opinion and imho they came to the correct conclusions.  Although the decision is readable, for those less inclined to wade through the legalese the press release outlines all the key elements of the decision in slightly more accessible language. Recommended.

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