Tuesday, May 10, 2011

Privacy law bid fails as European Court rules against Max Mosely

Max Mosely, the former President of the FIA which controls Formula One motorsport has lost his case in the European Court to force newspapers to contact people before exposing their private lives.

BBC News reported in 2008, the UK High Court awarded Mr Mosely £60,000 damages after ruling the News of the World invaded his right to privacy by reporting on his sex life in a story which was later reported on in The Times, HERE . Victory might have led to new privacy laws, which press bosses oppose.

Mr Mosley is reported to have expressed his disappointment at the European Court ruling, the conclusion of which can be read below :
127. In the present case, the defendant newspaper relied on the belief of the reporter and the editor that the sexual activities in which the applicant participated had Nazi overtones. They accordingly argued that publication was justified in the public interest. Although Eady J criticised the casual and cavalier manner in which the News of the World had arrived at the conclusion that there was a Nazi element, he noted that there was significant scope for differing views on the assessment of the “public interest” and concluded that he was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed (see paragraphs 23-24 above). Thus, in the applicant’s own case, it is not unlikely that even had a legally binding pre-notification requirement been in place at the relevant time, the News of the World would have chosen not to notify in any event, relying at that time on a public interest exception to justify publication.

128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant’s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted (see paragraphs 21 and 52 above). Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine.

129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines 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.

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’s coverage merely to titillate the public and increase the embarrassment of the applicant.

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.

Done in English, and notified in writing on 10 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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