Tuesday 10 May 2011

Today's ruling by the European court of human rights in Max Mosley's privacy case is a victory for the British government

Today's ruling by the European court of human rights in Max Mosley's privacy case is a victory for the British government, which argued at the hearing in January that countries were entitled to a wide "margin of appreciation"- in other words, discretion - in deciding how to strike the balance between freedom of expression and respect for an individual's private life.

James Eadie QC for the government (no relation to Mr Justice Eady) argued that there was no need for the media to pre-notify people before writing about them in the media.

"The government's judgment is that the imposition of such a positive duty would be likely to have - and would undoubtedly risk - a serious chilling effect on the freedom of the media and the freedom of the public to express themselves," Eadie told the court.

His arguments were broadly supported by written submissions from the Media Lawyers Association, the Media Legal Defence Initiative and Guardian News and Media. For the Guardian, Lord Lester QC argued that the legal duty sought by Mosley was not required by article 8 of the human rights convention - the right to privacy - and was inconsistent with the right to freedom of expression in article 10. The availability of injunctions and the right to sue for damages after the event amounted to an effective domestic remedy, he claimed.

"In practice," said Lester, "injunctive relief is usually available and will in itself be an effective remedy." These arguments have found favour with the court today.

What seems to have tipped the balance in favour of the media was the court's conclusion that any requirement to pre-notify an individual would have been subject to a public interest exception. A newspaper could opt not to notify the person concerned if it believed it could defend its decision subsequently on the basis of the public interest, the court said.

A reasonable belief in a public-interest defence would have to be sufficient to justify non-notification, the court said, even if it was found later that no such public interest arose. Otherwise, there would be a chilling effect on freedom of expression.

The Strasbourg judges also said that a pre-notification requirement would only be as strong as the penalties for non-compliance. Newspapers might be willing to risk a fine if they believed publication was justified. It would be possible to set penalties at a punitively high level, but these would be inconsistent with the right to freedom of expression.

The court said that the threat of punitive fines and criminal sanctions might create a "chilling effect" on political reporting and investigative journalism.
The conduct of the News of the World was "open to severe criticism", the judges said. But they had to look beyond the Mosley case to the wider public interest across Europe.