Mosley v United Kingdom

Mosley v United Kingdom [2011] 53 E.H.R.R. 30; was a 2011 decision in the European Court of Human Rights regarding the right to privacy under Article 8 of the European Convention on Human Rights. An application to the court was made by Max Mosley, former president of the FIA following his successful breach of confidence legal case against the News of the World (known as Mosley v News Group Newspapers [2008] EWHC 1777 (QB)). In the case the court unanimously rejected the proposition that Article 8 required member states to legislate to prevent newspapers printing stories regarding individual's private lives without first warning the individuals concerned, instead holding that it fell within each state's margin of appreciation to determine whether to legislate on this matter.

Application

On 29 September 2008, Mosley filed an application to the Court claiming Articles 8 and 13 of the European Convention on Human Rights were breached by the United Kingdom failing to impose a legal duty on the News of the World to notify him in advance of publication of the story. This would allow him the opportunity to seek an interim injunction and thus prevent publication.[1] If the Court decided that there was admissibility in the application,[2] Mosley argued that the damages awarded to him by the high court were an insufficient remedy.

Mosley challenged the state of English privacy law by arguing for a doctrine of prior disclosure, which would require journalists to give at least two days' notice of intention to print stories about the misbehavior of a public figure so that a judge, rather than just an editor, could decide whether the story should be published. John Kampfner, the chief executive of the human rights group Index on Censorship, and author of Freedom for Sale, argued that a doctrine of prior disclosure would stifle investigative journalism[3] and damage press freedom.

The case was fast-tracked through the European Court of Human Rights[4] and, in addition to the UK government’s case, a brief in opposition[5] was prepared by human rights lawyers Geoffrey Robertson QC and Mark Stephens at the instance of a number of media organisations including Media Legal Defence Initiative, Index on Censorship, European Publishers Council, the Media international Lawyers Association, Romainian Helsinki Committee, Global Witness, Media Law Resource Centre and The Bulgarian Access to Information Committee.[6] On 11 January 2011, a hearing was held by a Chamber of the Court.[7] Lord Pannick QC and David Sherborne appeared for Max Mosley, James Eadie QC and A. Jeeves for the United Kingdom.

Decision

In its decision, given on 10 May 2011, the court said “it is clear that no sum of money award after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant”.[8] and dismissed the UK government’s contention that the applicant had not exhausted domestic remedies.[8] It added “the present case resulted in a flagrant and unjustified invasion of the applicant’s private life”[8] and reiterated that “there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life”. It said the “conduct of the newspaper in the applicant’s case is open to severe criticism.” and took “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.”[9]

However, judges found in favour of the UK and ruled that domestic law was not in conflict with the Convention.[10] The court ruled that although there was a clear obligation to ensure that personal privacy was protected, there were existing protections in place, including the options of referral to the Press Complaints Commission and the possibility of seeking civil damages.[11] The Court ruled that the damages awarded under the earlier case at the English High Court represented an adequate remedy in respect of the breach of Mosley's rights.

The case was widely followed and reported in the mainstream media, with The Daily Telegraph describing the case as "a significant victory for free speech".[12] Several papers compared the case with the wave of privacy injunctions in the UK at the time, the so-called superinjunctions, but whilst both involve privacy law they are not related legally. Others commentators criticised tabloid coverage of the case, for instance Richard Peppiatt in The Guardian accused the tabloid press of "quote-picking" and downplaying elements of the judgment, including the court's reaffirmation of Mosley's 'victim status' and its admonition of the News of the World's conduct in relation to Mosley.[13]

References
  1. "HUDOC Search Page". Cmiskp.echr.coe.int. Retrieved 2013-10-27.
  2. Archived March 31, 2009, at the Wayback Machine
  3. Rawlinson, Kevin (2010-02-26). "Mosley case on privacy laws 'is being fast-tracked' - Europe - World". London: The Independent. Retrieved 2013-10-27.
  4. David Leigh (2010-03-31). "Media groups lobby Strasbourg over Max Mosley 'threat to freedom' | Media". London: theguardian.com. Retrieved 2013-10-27.
  5. "MLDI intervention helps defeat prior notification demand | Media Legal Defence Initiative". Mediadefence.org. 2011-05-10. Archived from the original on 2013-10-29. Retrieved 2013-10-27.
  7. "Factsheets". Echr.coe.int. Retrieved 2013-10-27.
  8. "Mosley v UK" (PDF). Retrieved 27 February 2018.
  9. "European court of human rights judgment on Max Mosley: conclusion". The Guardian. 10 May 2011. Retrieved 27 February 2018.
  10. Clive Coleman (2011-05-10). "BBC News - Max Mosley loses European court privacy law bid". Bbc.co.uk. Retrieved 2013-10-27.
  11. "HUDOC Search Page". Cmiskp.echr.coe.int. Retrieved 2013-10-27.
  12. "Max Mosley loses European Court privacy case". The Telegraph. London. 10 May 2011. Retrieved 2013-10-27.
  13. Peppiatt, Richard (11 May 2011). "Britain's freedoms weren't at risk in the Max Mosley case – tabloid editors' were". The Guardian. London. Retrieved 2013-10-27.
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