Max Mosley’s failure to persuade European judges that the media should have a legal duty to give people ‘prior notification’ of stories affecting their privacy is a particular relief for local papers.
The ex-motorsports boss had wanted the broad legal duty to be triggered whenever any aspect of a person’s private life was engaged by a proposed news story.
Local papers, which lack the deeper pockets of the nationals, could not have afforded to contest the injunction applications that were likely to have proliferated if prior notification became a legal requirement.
The risk of a chilling effect on freedom of expression, highlighted in yesterday’s ruling from the European Court of Human Rights, was therefore particularly marked for the regional press – which generates so much of the news later recycled by the nationals.
In rejecting Mosley’s argument that the absence of any prior notification requirement in UK law breached his privacy rights under Article 8 of the European Convention on Human Rights, the court took into account written representations from Geoffrey Robertson QC on behalf of various media organisations, in which he said: “A full day hearing at the High Court will cost the media defendant up to £60,000 if it loses and about £10,000 if it wins.
“This, of course, is the ‘chilling effect’ of a notice requirement: newspapers will not bother to publish newsworthy stories of genuine public importance for which they must give notice because they know that giving notice will trigger expensive attempts to stop the story.”
A £10,000 financial hit, in terms of costs even after a win in court, is not something the regional press could routinely countenance.
Importantly, the court decided a prior notification duty would impinge on responsible investigative journalism as well as lurid tabloid exposés of the type experienced by Mosley.
It said: “In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism…the introduction of restrictions on the latter type of journalism requires careful scrutiny.”
It held that the UK’s existing legal remedies, including damages and interim injunctions, together with the provisions of the Data Protection Act and rules of the PCC’s Code and Codebook, were sufficient to give effect to citizens’ privacy rights.
The court could not see how any legal duty to give prior notification could be sufficiently clear and effective, with meaningful deterrents, without also disproportionately overwhelming the media’s important right to freedom of expression in a democracy.
The court noted that the law of no other countries included a positive legal duty to give prior notification, and it was “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”.
The media – particularly local papers – can celebrate the fact that, in this instance at least, European judges allowed the UK significant leeway (a “wide margin of appreciation”, in legal jargon) to decide that its own procedural rules for privacy stories were adequate to protect privacy rights.
The regret, however, will be that our legal system does not seem to enjoy similar leeway to shape its own substantive law of privacy without having to follow restrictive European case law that interprets the public interest narrowly, and gives no general precedence to freedom of expression over privacy.