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Tuesday, 10 March 2009

Some thoughts on Max Mosley's quest to revamp privacy laws?

If you have been following Max Mosley's quest to revamp European and UK privacy laws, as this Kat has (also see earlier the IPKat posts here, here and here), then two recent interviews with Mr Mosley published in The Scotsman and in the German magazine Der Spiegel might be of interest. While the interview in The Scotsman will answer some of your legal questions, the interview in Der Spiegel gives you an insight into his motivation, which is "...to fight back".

It appears that Mr Mosley's lawyers have been quite busy 'fighting back' in Germany recently (also see IPKat post here). The Times reported in December 2008 that Mr Mosley was seeking €1.5 million from German tabloid Bild and bild.de, €350,000 from the German news agency dpa, as well from the Die Zeit newspaper - all in connection with footage of Mr Mosley in a compromising situation with uniformed ladies, and subsequent newspaper reports. The Sueddeutsche Zeitung had previously reported in October 2008 that Mr Mosley's lawyer, Ms Irion, had obtained obtained about 45 preliminary injunctions against German papers reporting on this matter.

Mr Mosley is of the view that the balance between the European Convention on Human Rights' Article 8 (right to privacy) and Article 10 (right to free expression) should be changed and that a system of "prior notification" should be introduced, under which the media must inform the subject of an exposé of an intention to publish. Mr Mosley advocates that such a 'prior notification' would give the the subject of an exposé the chance to seek an injunction to prevent publication of a potentially privacy-infringing story. In Der Spiegel he compares newspapers publishing a certain type of exposé stories with children throwing stones at frogs, with one of the frogs telling the children: "It might be a game for you, but it is a matter of life and death for us." In today's hearing at the Culture, Media and Sport committee, Mr Mosely reiterated that The News of the World newspaper article showing pictures of him at an orgy had had a "terrible, terrible" effect and had taken his "dignity"

On the legal side of this matter, The Scotsman cites Mr Mosley as saying:
"Critics say it will fetter the free press. I disagree. All I am suggesting is that if a judgment has to be made in a particular case between Article 8 and Article 10 it is better made by a judge with no vested interest in the outcome than by a tabloid editor with newspapers to sell."
When asked by The Scotsman whether he understood concerns that his envisioned changes to privacy laws might mean the end of investigative journalism, Mr Mosley is quoted as answering:

"I don't see it. The recent example of the Labour peers alleged to be offering their parliamentary services for cash is a case in point. The Sunday Times as a matter of course put the allegations to each of them for response prior to publication ...

Under the changes I envisage, the Lords might have gone to court and applied for an injunction but would not have got one. Even in a purely sexual story it would be possible for an editor to go to court ex parte to argue for exemption of the obligation to notify his target prior to publication."

While Mr Mosley's plans are certainly not without merit, this Kat wonders about the practicality of such a 'prior notification system' which involves a judge in any given case. Merpel on the other hand is of the view that the introduction of a 'prior notification system' could change the balance between privacy and freedom of expression and potentially have a chilling effect on freedom of expression.

This Kat wonders whether a legal requirement of prior notification would not imply that privacy is per se a stronger right than freedom of expression. Should it not be the media who decide what should be published? Even if the current press standards are not as high as they perhaps could be, would a prior notification on a voluntary basis not preferable? Given the important role which freedom of press has in a democracy, would it not be better to for various media groups (such as newspapers, TV, radio, electronic media, etc.) to develop their own notification codes?

What Mr Mosely apparently aims to achieve is to allow subjects of exposé stories to fight back before an often irremediable damage to their reputation has been done. And let's be honest, even if a matter has been wrongly reported and is later corrected, there is always a doubt that stays on. This Kat believes that Mr Mosley's aims could also be achieved by a voluntary media 'notification code' which the following aims: (i) alerting subjects of an exposé story to the threat of possible irremediable damage to their legitimate expectation of privacy, (ii) allowing an independent media body to address such matters as a matter of 'compliance', (iii) involving courts as a last resort, after the media body's mediation attempt is unsuccessful and/or in cases were there is clearly an actionable legal wrong.

What do our readers think?

10 comments:

JeremyN said...

Merpel is right about the threat to free speech. There is an an excellent summary of the issues by Giles Hattersley here on the Times Online site.

Anonymous said...

Freedom of press and privacy are equally important in modern society. When deciding in favour of the one or the other difficulties arise in that the relevant case law, both in the UK and on the continent, does not apply a single standard. In fact "the legitimate expectation of privacy" may differ substantially from one person to another. This appears to one of the reasons why only a court should decide this question.

Anonymous said...

I have very little sympathy with the tabloid newspapers in this matter. Self regulation will not achieve the necessary level of respect for privacy, for the simple reason that the tabloid newspapers live off the private lives of others, it is their bread and butter. It needs to be remembered what a frightening and undignified experience a media feeding frenzy is and how much damage it can do to ordinary people. With the proposed system, an editor would have to justify why revealing the private and legal (if immoral) behaviour of a member of the public to the world at large serves the public interest (remember that Mr Moseley was indulging in his private activities in Germany where this is legal). The Moseley affair would not have satisfied the criterion of serving the public interest, since it serves only to entertain. The Profumo affair on the other hand would have been deemed to be in the public interest, since the John Profumo, a government minister, was sharing the services of "lady of the night" with an officer of the KGB at the height of the cold war. It is precisely this limitation to stories which reveal personal details only when they are in the public interest, which tabloid editors wish to avoid having imposed on them and they hide behind the freedom of the press to justify this ("hell hath no fury like a vested interest masquerading as a moral principle").

If legislation is passed, the tabloids have only themselves to blame for this. I am also uncomfortable at the possible negative effects on free speech but let us place the blame firmly where it belongs. Self regulation will not work, a code of practice is unlikely to deter tabloid editors when circulation (i.e. money) is at stake.

Anonymous said...

My first concern about this would be the amount of time it would then take to publish a story - if time was of the essence (say there's an election in a month), then having to go to the courts first would effectively gag the press until the story is no longer relevant.

geeklawyer said...

It's almost inevitable that unattractive litigants, both as defendant and claimant, drive these topics.
Mosely is an unappealing fool and his suggestions would have the practical effect of curtailing any criticism of the rich famous and sleazy who are the usual recipients of media privacy invading stories (yea, Gordon Kaye excepted). Papers simply wont want the expense and time of publication enabling applications.

If any system had to exist I would suggest that publication without application were permitted but that the refusal to make an application was, along with other elements, a factor in assessing damages.

Birgit said...

RE Anonymous at 10:38:00 AM who stated: "Remember that Mr Moseley was indulging in his private activities in Germany where this is legal".

I am not sure that these "activities" were conducted in Germany. I thought that this all took place in the UK, even though some of the participants may have spoken German or with a German accent, see [2008] EWHC 1777 (QB) Case No: HQ08X01303.

Re "... where this is legal"

The German legal position concerning sexual activities between consenting adults at least, appears more or less the same as it is in the UK.

Alan White said...

Is it a breach of privacy to reveal that Max Mosely was in the past a mmber of the patent bar?

Hugo Cox said...

I agree with Mr Mosley that the current legal system fails to protect the right to privacy - victims can only 'defend' themselves by allowing further exposure. If a notification system was introduced, it would provide some protection of this fundamental human right. It would also allow stories of strong public interest to be published. Borderline stories that are blocked but ultimately win can still be published - the public interest being underlined by the court's backing. If, as is more likely, there was no public interest but the question was whether the claimant had a reasonable expectation of privacy at all, then all the public has lost is a trivial story. On balance, notification would be better than the present system. It would be difficult to work out when editors should notify, however, as the potential ambit of privacy is currently so unclear.

Anonymous said...

I think you're wrong that the proposed system would only benefit the rich. At present, in order to protect privacy, an individual has to first get wind of the story and then bring very expensive proceedings for an interim injunction.

Under the proposal, the paper would (presumably) be paying for the application to break the story and a poor subject could at least turn up to court and explain themselves why it would be damaging to their privacy. A slightly easier task than bringing an application for an interim injunction as a litigant i person!

Thus, poorer persons (who also have rights of privacy!) would be better protected by the suggested scheme than under the current law.

Martin Chinnery said...

There's no thoughtful legal insight here, but this piece in The Daily Mash hits the nail on the head. Warning :contains language that some readers might find offensive.

http://www.thedailymash.co.uk/news/celebrity/press-stole-my-dignity%2c-not-gang-of-whores-thrashing-my-bare-arse%2c-claims-mosley-200903111634/

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