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?