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Max Mosley slapped down

By Steven | May 11, 2011

The European Court of Human Rights has unanimously rejected Formula 1 boss Max Mosley’s claim that the UK’s laws didn’t sufficiently protect his privacy because they didn’t require the press to give him advance notice before publishing invasive articles about him.

The most surprising thing about this decision is that the ECHR held that it would  be possible to draw up a workable definition of “private life” so that the press would know when they’re about to intrude on it, and who this notice requirement would apply to. (The ECHR did not, however, supply such a definition).

However, it concluded that an advance notification requirement would be unworkable for other reasons. It would have to be subject to a public interest exception, which would fatally undermine it. After all, the News of the World said it believed the footage of Max Mosley having his bottom shaved was in the public interest (both because of what they believed – wrongly – to have been a Nazi theme, and because they asserted that the S and M session depicted a series of assaults!). So it wouldn’t have worked in Mosley’s case.

Such a requirement would also have the potential to chill important speech, the court found. (This isn’t very well explained, I think. It is a universally accepted principle of ethical journalism that people be confronted with serious criticisms so that their response can be included in the publication. That’s not usually regarded as chilling speech. What’s more, the possibility that a person may seek an injunction to prevent publication if they are forewarned like this is not usually regarded as a good reason not to seek such a response.)

More convincingly, the court said that such a rule would be only as effective as the punishment for breaking it. If tabloids ignore the notification rule, what then? Fine them? It would have to be a big fine to provide any real incentive. So big, in fact, that it would probably be disproportionate.

As Hugh Tomlinson QC points out, this is not really a shining triumph for free speech. It is not a backward step in the ECHR’s privacy jurisprudence. There’s no doubt that the judges would have rejected any claim by News of the World that Mosley’s privacy action against them breached their free speech rights.

Topics: NZ Bill of Rights Act, Privacy tort | 41 Comments »

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