The European Court’s View of UK Privacy Law

Should there be a legal duty to notify people about whom a story is to be published, to give them an opportunity to go to court to stop the publication?

Max Mosley, former Formula 1 motor racing chief says so.

The News of the World, a UK tabloid, ran a story a few years ago revealing that Mosley had taken part in a sadomasochistic orgy with prostitutes. In 2008 Mosley won damages from the UK High Court of for breach of privacy.

Mosley claims that the UK is in breach of human rights laws because there is no remedy for people whose rights have been infringed, other than to go to court after the publication.

In Mosley’s case although his privacy was found to have been breached, all the facts are now permanently in the public domain. He recovered a damages award and costs that together totalled 30,000 pounds less than his legal bill.

The European Court of Human Rights in Strasbourg heard the case in January. It was within its power to require the British Government to introduce laws that would require newspapers to give notice before publishing a story about the person’s private life. But last week seven judges of the ECHR ruled that the European Convention on Human Rights does not require media to give prior notice of intended publications to those who feature in them. They held that UK privacy law provides an adequate remedy for breach of privacy.

Media organizations are, predictably, describing the ruling as a victory for freedom of expression. They argue that a duty to give notice would have a “chilling” effect on on investigative journalism.

There is a similar debate raging in the UK over “super injunctions”. (See Genevieve Lay’s SLAW post of 10 May.)

Does the press have a right to publish sex scandals for profit? Is a curb on this right an incursion on freedom of expression that would delay perishable news? Would a notice requirement for such stories inhibit genuine public interest journalism? Wouldn’t such privacy injunctions fail if the public interest was at stake? Is a remedy of money damages after publication, truly a remedy?

These are the tough questions. Mr Mosley is considering an appeal.