Law Review: Mosley, privacy and the human right of newspapers to cash in on shaggery and general skulduggery

It is unlikely that our Great Leader, prime minister Camerondirect, will feel the need to park a tiger ( a euphemism/synonym for vomiting which I have used for 30 years) after reading the European Court of Human Rights decision in MOSLEY v UNITED KINGDOM. The ‘unelected’ judges did the biz today for some vested interests.

Inevitably Mosley is seeking to appeal to The Grand Chamber.  The judgment seemed, to my eye, to be fairly robust and clear.  I suspect an appeal may prove to be an uphill struggle.  Judging by his entirely private hobby – a hobby enjoyed by countless thousands throughout the land? – ‘prior restraint’ seems to one of his interests. Good luck to him.  Could be good money after bad?

Rosalind English, writing in The UK Human Rights Blog, notes: “The Strasbourg Court has ruled that the United Kingdom has not breached the right to privacy by failing to have in place a “pre-notification” requirement that would have alerted Max Mosley to the News of the World’s impending publication of covertly filmed footage…..”

Libertarians and others with little taste for censorship of any kind will be delighted with this result.  The mainstream media will also be delighted with the judgment.  It would not surprise me if some newspapers now tweak that ‘margin of appreciation’ and not bother to ‘prior notify’ shaggers and other wrongdoers whose (arguably) private hobbies provide salacious delectation to readers of tabloids (and, latterly, the broadsheets)  in the mornings before work.

We have seen that twitter and the net has effectively sunk the superinjunction as a realistic tool for suppressing information.  This has been covered by many in recent days: A super-injunction toolkit

David Allen Green has this in The New Statesman: Thinking clearly about superinjunctions

One thing, for certain, is that the cats on twitter and other social meeedja will not be herded.  I suspect that any revision of libel law and privacy – separate issues but linked – will have to consider carefully the reality of the jurisdiction of the English court and the use of injunctions.  I cannot see thousands of tweeters being carted off to jail for contempt.

The difficulty is straightforward in one respect.  Freedom of the press is crucial to any nation. The right to privacy and freedom of expression are both enshrined by law.  Injunctions are not working.  Perhaps compensatory (or even aggravated) damages  may prove to be the only effective remedy for invasions of privacy – however defined – when Parliament finally gets around to drafting laws on this…as surely, they must now?

I do not know, but I suspect that commentators are right in saying that the judges will be losing little sleep on the issue. They will have an interest in ensuring that the rule of law is upheld – but it is not for them to prosecute injunction breakers? The judges are merely applying the law as it stands at present;  using a remedy of injunction which has been around for some time and developed in recent years to provide ‘some relief’.

Dominic Lawson, writing in the i newspaper, summed it up quite well when he stated that many who read of the exploits of the shaggers…  actors, footballers etc etc – role models for the future of our Big Society – are more likely to be impressed than horrified.  Worse… Lawson wrote… readers may even start emulating this behaviour.  So, is it really in the ‘public interest’ to know about these exploits and allow the press to make a packet from this mild top shelf porn… he noted, referring to Mr Paul D’Acre’s antics some years ago on this issue?

Freedom of the press is and should be about the really serious stuff – when those who govern, those who run large corporates, those in any public office affecting our lives,  transgress. We have a right to know.  That, really, is in the public interest.  Superinjunctions should be severely restricted in such instances, perhaps even abolished?  After all, if the allegations made by a journalist are wrong – the penalties can be high and made even higher by legislation. The debate will run and run… it is not over yet.

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Carl Gardner, author the Head of Legal blog: Mosley v UK

13 thoughts on “Law Review: Mosley, privacy and the human right of newspapers to cash in on shaggery and general skulduggery

  1. “I cannot see thousands of tweeters being carted off to jail for contempt.”

    Nope, but if there is enough political or legal motivation, I can see an attempt to hold twitter being held accountable instead or at least required to act in some fashion, just like the copyright industry tended to go after the distributors, youtube, napster, and the largest of file sharers.

    Whether that will fly legally, or politically, is a question only politicians and lawyers can answer. I’m neither. But someone else, sometime, is going to think it and try it on.

    Ultimately, the courts can never be the answer. In the end we are. And the answer from our society currently is:

    ‘Screw privacy! Gimme more titilation!’

    The hypocrisy is that these same people, if they could, would be the first to run to the courts if their own privacy was invaded in a way they don’t want to, doesn’t bear thinking about.

  2. Antonio… I think most people value their privacy…. but newspapers are not interested in the likes of you and me…… (I am assuming you not a celeb)

    It does need to be dealt with by Parliament… and reform is underway with various reports due soon – not least Lord Neuberger MR on superinjunctions.

  3. C: The fact that it would appear the public are interested in the goings-on of public figures is debateable and if true can only be due to the lowering of society’s standards of behaviour – possibly?

    Where public figures are concerned, of whatever classification, what they do and with whom, once they have shut their front door, is not my concern, neither is it my concern whether they prefer male of female company. What is my concern is when they are entrusted with public money and misuse that money and trust for either personal gain or, where the country is concerned, ineptly.

    In the case of David Laws, for example, his private life is no concern of mine, just his professional conduct. The fact that the press feel a need to make an issue of that, or to include that detail, in their reporting does, as I said, reflect badly on our society and/or on how the media believe that society needs.

    All the above may well be consider of no consequence in a court of law, or where points of law are concerned. It is however my view, one to which I believe I am entitled.

    The other bone of contention is that, in a separate instance – that of Mosely – the matter occured in this country and should be subject to the laws of this country and the final decision should not rest with a ‘foreign’ court.

  4. @Antonio Lorusso

    Twitter is a US-based company. I doubt it even has any legal presence in the UK. In any case, I would suspect anything restricting freedom of speech would run straight into the American Constitution First Amendment prohibiting laws from infringing on freedom of speech.

    The reason why copyright law can be enforced in the US is that there is no fundamental conflict in the principles.

    In any event, I’m inclined to the published and be damned philosophy. That is, if you publish something, you take the consequences. I’m deeply suspicious of the judiciary being empowered to impose censorship on the freedom of expression of individuals except under limited circumstances when it comes to their own lives.

  5. WW – agree. I used ‘Libertarian’ in the broad, not political, sense.

    I don’t care what people do in their private lives. Up to them.

    I do care about the transgressions of people in public governance (widely defined) – which impact on their ability to the job or which may affect us adversely.

  6. WW – as to ‘Foreign’ court… as we are signatories to European Convention it is not, of course, a ‘foreign court’. It is our court and that of the other signatories! :-)

  7. Accept your comment about ‘foreign’ court – however as we should not be in the EU I discount their ‘authority’!

  8. WW – The Convention is not, strictly, an EU membership issue. the Convention operates outside ‘Europe’.

    We can, of course, come out of Europe and we can resile from the Convention. I suspect both would be a ‘bad idea’ :-)

    But I do get your drift on Europe…. bureaucracy and cost is getting out of hand?

    I am a ‘europhile’…though…. I like the freedom of travel… and I like ‘Europe’….

  9. Whilst all this meeja law is not my forte, as far as I can tell the judges perform a “balancing exercise” between Arts 8 (privacy) and 12 (expression). There must be circumstances in which 12 will win over 8. Perhaps the case has not (yet) arisen.

    Mosley lost in E Ct HR but that does not mean that the notification idea is without value. Carl Gardner has good post on this point so I won’t repeat it.

    I’m not entirely sure that Parliament will necessarily jump into action over this. We shall see. They probably have some bigger fish to fry just now !!

    Hope all is well, Regards
    ObiterJ

  10. if asked whether i value the right of the rich and powerful not to have their nastinesses exposed over the right of the free (ha ha) press to publish prurient shite, my steadfast answer is …

    meh!

    i know there’s a serious point in here, but it has come down to a balancing act between competing inhuman rights.

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