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.