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The Law Column: No 'chilling effect' from privacy so far

Rampant privacy law and Max Mosley’s win against the News of the World have not had any ‘chilling effect’ on the press, a media law conference heard.

The audience was told by a top privacy law academic that, in his opinion, press intrusiveness remained in rude health.

Mosley’s £60,000 damages award had been no deterrent to the media, and as for a certain gossip magazine’s latest output, he added: “Everything it publishes is actionable.”

The conference, at BAFTA in London last month, was held under the Chatham House Rule, which strangely means that to safeguard free speech, no one may report who said what.

But it can be revealed that lawyers are busy re-fashioning the right to privacy (usually associated with Article 8 of the European Convention on Human Rights) as a right to freedom of expression (usually associated with Article 10 ECHR).

The twist was highlighted in a QC’s speech on the latest thinking on privacy.

Now journalists must get to grips with the idea that the right to control the publication of private information under Article 8 will in certain circumstances reinforce the right to freedom of expression under Article 10, not oppose it.

It stems from Lord Hoffmann’s remarks that the new approach to privacy under Article 8 focuses on “the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life, and the right to the esteem and respect of other people.”

The new emphasis also places reliance on the following remarks of Mr Justice Munby: “Article 8 embraces both the right to maintain one’s privacy and, if this is what one prefers, not merely the right to waive that privacy but also the right to share what would otherwise be private with others or, indeed, with the world at large. So the right to communicate one’s story to one’s fellow human beings is protected not merely by Article 10 but also by Article 8.”

Where, for example, someone wants his personal story (including private information about someone else) to be published in the press against the other’s wishes, he does not merely have an Article 10 right to freedom of expression. He also has an Article 8 right to dignity and autonomy in being free to tell his story, which may out-weigh the other person’s Article 8 right to dignity and autonomy in keeping the matter private.

So expect to see Article 8 increasingly being used as an argument for allowing publication, as much as for prohibiting it. That’s good for the media.

Back in the real world, privacy continues to be easily actionable and costly. Actress Sienna Miller has recently secured £15,000 damages and an apology from the Daily Star in a settlement over its use of a photograph of her being harassed by paparazzi.

As to contempt, the publisher of the Jewish Chronicle has been fined for breaching the automatic reporting restrictions contained in Section 8 of the Magistrates’ Courts Act 1980.

The company appeared before Brent magistrates, in London, in a prosecution authorised (as all such cases must be) by the Attorney-General.

Regional and national newspapers negotiate the hazards of Section 8 on a daily basis in their Magistrates’ Court reporting of offences headed for the Crown Court, but prosecutions for breach are rare.

Section 8 requires reports to contain only certain information, such as the charges, and the names, address and occupations of parties and witnesses.

The publisher was fined £1,000 and ordered to pay £250 costs. Unfortunately, no more light can be shed on the case at present for legal reasons.

Two high-profile libel claimants, meanwhile, have decided to drop their costly claims.

Sheffield Wednesday Football Club and its chief executive have ended long-running claims against certain fans over postings on supporters’ website owlstalk.co.uk. The case had dragged on for more than two years.

And hot from its mixed fortunes in its libel battle with Tesco, the Guardian can relax after Dr Matthias Rath discontinued his libel claim against the paper.

The paper published articles by columnist Dr Ben Goldacre which accused Dr Rath of making false claims about the efficacy of vitamin pills in treating HIV/AIDS, and misleading people in South Africa into foregoing other medicine.

Dr Rath was ordered to pay the paper a whopping £220,000 as an initial instalment towards the costs incurred in fighting his claim.