tag:blogger.com,1999:blog-5574479.post3221659998683140089..comments2024-03-18T17:10:35.838+00:00Comments on The IPKat: Free speech trumps privacy, but only just, in Mosley caseVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5574479.post-38667373773404232052008-04-30T13:39:00.000+01:002008-04-30T13:39:00.000+01:00Re Eady J’s approach. I can add a German perspec...Re Eady J’s approach. <BR/> <BR/>I can add a German perspective, as I believe that the Judge's approach in the case is very similar to how German courts decide similar cases. The balancing of the conflicting rights (special personality right "privacy" on the one hand and freedom of expression on the other hand, both being human rights protected under the German constitution) is usually decided within the question of "justification"/defence/"Rechtfertigungsgrund". This procedure applies to personality right (which encompasses privacy rights) infringements under sec 823 BGB (German Civil Code), as well as under German criminal law. German criminal law even provides for a special justification in its sec 193 which is called "justified interests", which the courts tend to be interpret in the light of the constitutional guarantees of freedom of expression (Art. 5(1) GG) and personality right, Art. 2(1), 1(1) GG . <BR/> <BR/>The Judge in the Mosley case is doing exactly the same. He is looking at the right that is infringed, which is privacy under Art. 8. He then assesses whether this infringement could be "justified" by a conflicting right that should be given precedent in the particular circumstances of the case: freedom of expression under Art. 10. The balancing of rights is necessary because no "Convention right has, as such, precedence over another". He then balances both rights by applying the proportionality principle. If one right was per se "higher ranking", there would be no need for a balancing. So, yes, "freedom of speech" is definitely a defence and will prevail if the balancing of the conflicting rights leads to this outcome. <BR/> <BR/>This approach looks (almost) identical to the German court's approach and looks very familiar to me. <BR/> <BR/>What is not quite clear to me, is the way the "proportionality test" is applied and, indeed, the final outcome of the case including the rather free "balancing" of the rights. Yes, the information is in the public domain but has Mr Mosley really lost "his reasonable expectation of privacy because the information was so widely available"? I certainly don't think Mr Mosley's actions are of good taste but he did conduct these privately. It was not Mr Mosley that made it all public. While the right of privacy and the right of freedom of speech, press, media are per se of the same importance, the sphere of intimacy (which includes an individual's sexuality) should be taken into special account when balancing these conflicting rights. Another question that should perhaps have been asked is how severe the encroachment of the privacy right was/is? The fact that the information is now widely available does not make a further reposting right or lawful. Whether there was any public interest in publishing this story with so much detail(!) in the first place is also questionable, so should it be re-posted just as it was. Yes, the media should never be censored but was the level of intrusion really necessary to inform the public? Can the same information not be reported in a less intrusive manner? <BR/> <BR/>So was this really proportional? I am not sure this follows. A republication of the same material on the same news site does send a signal, whether the information is in the public domain or not. The signal this sends to me is that the publication of the detailed video was lawful in the first place. <BR/> <BR/>It is my view that such cases will be decided differently in a few years when more jurisprudence will be available from English courts especially when it comes to the balancing of the conflicting rights. <BR/><BR/>Very interesting case....Birgit Clarkhttps://www.blogger.com/profile/02822674465997696890noreply@blogger.com