Mosley Decision Ends Big Chill

Michael Hedges May 10, 2011 - Follow on Twitter

Media’s inquiring eye will remain wide open and unblinking, as it should be, said Europe’s human rights court. Celebrities and other notables will not have the special privilege of knowing their exploits are headed for the tabloids. Privacy is important but the public interest rules.

The long awaited ruling by the European Court of Human Rights (ECHR) (May 10) on a complaint by former Formula One president Max Mosley against the UK government comes as a relief to news organizations, certainly those of the tabloid variety. Mosley pursued his intention to force the UK government to strengthen a privacy privilege for the rich and famous after winning a judgment in 2008 against the News Of The World tabloid, owned by News International.

News Of The World published, complete with photos and videos, a rather racy story about Mosley and hookers decked out in Nazi regalia. Mosley’s father, Oswald, was an infamous British Nazi and pal of Adolf Hitler. “Given that the News of the World had believed that the sexual activities they were disclosing had had Nazi overtones, they could have chosen not to notify Mr. Mosley, even if a legal pre-notification requirement had been in place,” noted the Court. Mosley’s argument was that, even after winning a financial settlement from News Of The World, UK law failed to restore his privacy rights.

The “chilling effect” of prior notification on the media, said the ECHR, supercedes privacy rights under Article 8 of the European Convention on Human Rights. “Any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it,” said the ECHR’s decision. “Although punitive fines and criminal sanctions could be effective in encouraging pre-notification, that would have a chilling effect on journalism.” Mosley does have a further right to appeal to the full Court.

Unique to UK law is the provision for those who suspect they might be subject to unpleasant or embarrassing news coverage to obtain “super injunctions” from local judges preventing not only publication but preventing any mention that an injunction exists. “The Court had not been referred to a single jurisdiction in which a pre-notification requirement as such existed, nor was it aware of any international legal texts requiring States to adopt such a requirement,” noted the ECHR. Several news organizations and press freedom advocates delivered opinions during the Court’s deliberation earlier this year.

While tabloid media certainly won this round in the increasingly contentious row between public interest and privacy, the ECHR noted the original News Of The World coverage existed “merely to titillate the public and increase the embarrassment of the applicant (Mosley).” The Court did not rule in support of tabloid journalism but that UK law sufficiently protected Max Mosley’s human rights.

“The court,” said its ruling, “recognizes that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media. 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 (freedom of expression). 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.”

“The pre-eminent role of the press in a democracy and its duty to act as a 'public watchdog' are important considerations in favor of a narrow construction of any limitations on freedom of expression,” said the Court. “However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life. Such reporting does not attract the robust protection of Article 10 afforded to the press.”

Beyond the tabloids – printed or otherwise – is the chilling effect of new media on the privacy of the rich, powerful and just plain weird. Social media, notably Twitter, makes “super injunctions” on traditional media irrelevant, says Hiscox privacy expert Ian Birdsey. “This case shows that while the rich and famous might have spent the last 12 months expanding English privacy law through the courts, social media has opened up borders and certainly has the potential to redress the balance. With the internet ultimately enabling anyone to be a journalist and report in the public domain, privacy laws will need to radically change to catch up.”

See also in ftm Knowledge

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