Mosley v UK

by Carl Gardner on May 10, 2011

Max Mosley has lost his case in the European Court of Human Rights, in which he claimed that the UK breached his right to respect for private life under article 8 of the ECHR by failing to impose a legal duty on the media to notify him in advance of a story that violated his privacy.

Mosley v. United Kingdom

This is unsurprising – it was always a bold claim to make that the UK had a positive obligation to have such a particular kind of system in order to satisfy article 8. I think that must be right: if article 8 required this in the UK, it’d require it all over Europe. I think to find in Mosley’s favour would have been to set rigid policy for the entire continent, ignoring the margin of appreciation (as the Court has tended to do on the subject of prisoners’ votes, for example, about which I’ve been very critical). So the ruling is sound legally, and difficult to argue with.

It’ll be a shame though if Mosley’s idea of pre-notification is now dismissed, though, as impossible or unworkable. I’m not sure it, or something like it, is unworkable at all – and the judgment doesn’t rule it out if the UK wanted it – it just says we’re not required to have such a system. I think Mosley’s idea has some merit, and should not just be forgotten about. A system of voluntary prior notification for instance – with special legal immunity from any financial or other claim for journalists and media organisations who do give prior notice – would actually be much less chilling of free speech that our current “publish and be damned” culture, which leads to excessive self-censorship for fear of money claims after the fact.

{ 4 comments… read them below or add one }

1 ObiterJ May 10, 2011 at 21:28

I think the Moseley decision at the E Ct HR is right – Art 8 does not require States to have a prior notification rule. However, it may have some merit.

Hypothetical example: A “source” gives the media a story about an eminent surgeon getting drunk every Sunday evening and operating on patients the next day. The story is actually untrue – there being one occasion only when this occurred – on the surgeon’s birthday and he did not work the following day. He is able to confirm that he did not habitually get drunk.

Under our present system the media publish. He can sue. Even though innocent he is seriously damaged professionally – “no smoke without fire” etc. If he was notified of the story and able to refute it then there would be no point in publishing it.

Now let us remember that there is no legal aid for defamation actions and they are extremely costly. So, if the person libelled simply cannot afford to sue they have to suffer the professional damage.

One could multiply examples but the “Moseley idea” – if we might call it that – has some merit.

2 James Medhurst May 10, 2011 at 22:54

Interesting but it is not clear that Article 8 protects him from libel. Oddly, there does not seem to be a human right not to be lied about.

3 Jailhouselawyer May 11, 2011 at 12:40

My understanding of Hirst v UK (No2) does not accord with your view expressed here. “ignoring the margin of appreciation (as the Court has tended to do on the subject of prisoners’ votes, for example”.

The Court clearly stated that it allowed the UK a wide margin of appreciation, nevertheless a blanket ban fell outside of this.

4 Twiki May 25, 2011 at 13:16

ObiterJ. I know your example is hypothetical but no way would a newspaper report that story as it is a libel waiting to happen. If a source told me (a journalist) about it, I wouldn’t even begin to write the story without evidence backing it up. Even with evidence, I would still approach the surgeon before running the story.

Re prio notice, most newspapers (certainly on a local level) will want to speak to people before running a story about them. The problem with many newspapers have been bitten when notifying people – or companies – because a confidentiality – or more recently super-injunction – ban has been imposed. And that’s not just tittle-tattle kiss and tell stories but major issues.

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