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Prior notification is about more than Max Mosley

 


 

A hot topic this month has been ex-Formula One boss Max Mosley’s bid to persuade European judges that the UK media should give people prior notification of stories affecting their privacy.

He wants the European Court of Human Rights to require a new legal obligation to be imposed on the press to contact individuals pre-publication so they can seek an injunction before privacy is lost.

But it is a curious paradox that while the media face demands for a new duty to give notice so that litigants can dash to the High Court for a gagging order, many litigants are not complying with existing legal obligations to give the media prior notification that they are applying for an injunction.

The first that many newspapers and broadcasters know of injunctions is when they slide slyly off the newsroom fax.

Only yesterday, the Leicester Mercury received an injunction of which it had had no prior notice in a family case. The order required the disclosure and delivery-up of certain documents the paper was alleged to have received – about which its actually believes it knows nothing – and to provide a sworn statement about the position.

The injunction also gagged it and “any associated newspaper” from publishing anything that might lead to the identification of two particular children in any context, about whom it believes it knows nothing.

The order was not directed at any individual or corporation but simply at “the Leicester Mercury”, which is not a ‘legal person’ in law, and required the steps to be taken “within 48″ [sic].

At the time of writing, the situation is yet to be clarified but serious questions remain as to whether the local authority that successfully applied for the order had drawn the court’s attention to the prior-notification procedures set out in S.12(2) of the Human Rights Act.

Those procedures have been in force more than a decade, yet litigants and courts often fail to adhere to them. Section 12(2) states that if the relevant media organisation is not represented in court, no gagging order is to be issued unless the court is satisfied that the applicant has taken all practicable steps to notify it or that there are “compelling reasons” why the media should not be notified.

In March 2005, Dame Elizabeth Butler-Sloss, who was then President of the Family Division, saw fit to issue a Practice Direction to try to ensure prior notice was given. She said media lawyers were able to differentiate between private information notified to them for the purpose of injunction hearings and information for editorial use, and it would be “exceptional” for a court to grant an injunction without prior notice to the press.

But this simple law is often overlooked or ignored, undermining press freedom.

In a 2009 case called Re Child X (Residence and Contact – Rights of Media Attendance), media organisations challenged an injunction that had been granted without prior notice. Sir Mark Potter, who was then President of the Family Division, strongly criticised the failure to comply with S.12(2) and the President’s Direction of 2005.

He said: “This is not a position which should occur again.”

Last year, in a civil case in which Doncaster Metropolitan Borough Council had initially obtained a pre-publication gagging order against the BBC without giving it prior notification, Justice Tugendhat refused to extend it.

He said there had been no valid reason for not giving notice to the BBC in accordance with existing law.

A week later, in the well-known privacy case involving Chelsea and England footballer John Terry, Justice Tugendhat evidently felt so dissatisfied with litigants’ repeated failure to give prior notification of injunction applications that he saw fit to include yet more guidance on the correct procedure in his ruling.

For the regional press, a gagging order received out of the blue is as much an affront to their freedom as it is to freedom of national newspapers and broadcasters. But few regional papers can afford the substantial legal fees incurred in challenging and rectifying overbearing orders that have been issued peremptorily without their knowledge.

While the limelight is on Mr Mosley’s drive for new prior notification laws against the media, we should not forget the existing ones that are so often flouted to the detriment of freedom of expression.

 

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail nigel.hanson@footanstey.com or visit www.footanstey.com.
  • 6 comments

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    • January 18, 2011 at 11:33 am
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      This article only serves to highlight the differences between the obligations on individuals seeking to protect their privacy and the media. At present the media are “having their cake and eating it” as they can publish without giving prior notification and at the same time seek to overturn injunctions granted when they haven’t been notified in advance. Surely a level playing field is required and the best person to decide is a Judge and not the newspaper editor.

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    • January 18, 2011 at 12:12 pm
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      Nigel’s point about prior notification makes some sense but I believe a lot of this has come about because papers think they have a divine right to do what they want. Hence the ridiculous Max Mosely story which is none of anyone’s business. I think papers need a long hard look at ‘the public interest’.

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    • January 18, 2011 at 12:49 pm
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      Dave – you’re talking arse. It’s about freedom of speech. In this country, you should be allowed to say anything about anyone, within reason, so the media should be able to print without people’s prior knowledge. Trying to stop someone’s free speech should be done sparingly. Therefore, prior notice should be given. It is that simple

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    • January 19, 2011 at 9:51 am
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      So Twiki, let’s say you have a private life which you wnat to keep private. Can the press just print stuff about what you get up to? No, they can’t. But that should apply to everyone unless there is a real public interest, not just something the public would be interested in. Ah, you say, but celebs court publicity when it suits them. yes, they do, and the papers fall for it every time. It doesn’t mean the original point is not valid. A private life, as long as lawful, is just that. The papers should also bear in mind their lamentable record when it comes to making responses when they themselves are the news, eg job cutbacks. The ‘no comment’ line which is always trotted out looks pathetic.

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    • January 19, 2011 at 12:37 pm
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      Andy – we’re arguing different things here. My point is that if the media want to publish something about people’s private lives eg MPs’ expenses, they shouldn’t have to let them know that the story is being run. Yes people’s private lives are that but there shouldn’t be any more extra hurdles for the press to get round in order to publish a story in the public interest.

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    • January 19, 2011 at 3:46 pm
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      Twicki You are right … but it’s because the we the press print stuff which is NOT in the public interest that everyone becomes paranoid.

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