"Freedom of speech" fights back: European court BLOCKS Max Mosley bid to gag the Press

At last a triumph for freedom of speech: European court BLOCKS Max Mosley bid to gag the Press

By Daily Mail Reporter

Last updated at 9:58 AM on 10th May 2011

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Max Mosley has taken the case all the way to the European Court of Human Rights

Ex-Formula One boss Max Mosley today lost his European Court of Human Rights bid to force newspapers to warn people before exposing their private lives.

The verdict in the European Court of Human Rights in Strasbourg marked the last stage in Mr Mosley's campaign for tighter privacy laws following revelations of his sex life in the News of the World.

In 2008 the UK High Court awarded him £60,000 damages after ruling that there was no justification for a front-page article and pictures about his meeting with five prostitutes in a London flat.

But Mr Mosley pursued the case to the Human Rights Court, challenging UK privacy laws which allow publication without giving their targets advanced warning.

Today's verdict of the seven-judge court declared: 'The European Convention on Human Rights does not require media to give prior notice of intended publications to those who feature in them.'

It said that in the UK the right to a private life was protected in several ways: by a system of self-regulation of the press; by access to civil courts to seek damages; and 'if individuals were aware of an intended publication touching upon their private life' they could seek an interim injunction preventing publication.

In addition, said the judges, a UK parliamentary inquiry on privacy issues had been held recently with the participation of, among others, Mr Mosley himself.

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The resulting report had rejected the need for a 'pre-notification' requirement.

The human rights judges said that during the case no evidence had been produced of any other country which had a 'pre-notification' requirement, nor of any international legal texts requiring media to do so.

The judgment continued: 'Last and not least, the current UK system fully corresponded to the resolutions of the Parliamentary Assembly of the Council of Europe on media and privacy.'

Jemima Khan: 'If she hadn't reacted there wouldn't be the current hysteria'

The concept of "private life" was sufficiently well understood for newspapers and reporters to be able to identify when a publication could infringe the right to respect for private life, said the judgment.

And if there were to be a pre-notification requirement in the law, it would have to allow for an exception if public interest was at stake.

'Thus, a newspaper could opt not to notify an individual if it believed that it could subsequently defend its decision on the basis of the public interest in the information published.'

The judges said that in Mr Mosley's case, given that the News of the World had believed that the sexual activities it disclosed had Nazi overtones and were therefore of public interest, the paper could have chosen not to notify him, even if a legal pre-notification requirement had been in place.

Or a newspaper could choose to decline to notify, and prefer instead to pay a fine.

But, the judges said, 'any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it.'

Also, particular care had to be taken when looking at possible constraints which might amount to censorship prior to publication.

'Although punitive fines and criminal sanctions could be effective in encouraging pre-notification, that would have a chilling effect on journalism, even political and investigative reporting, both of which attracted a high level of protection under the (Human Rights) Convention,' said the judgment.

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That ran the risk of breaching rules on freedom of expression.

In last January's hearing into the case, the British Government argued that current UK rules strike a good balance between the "right to private life" and the "right of freedom of expression" - both explicitly guaranteed by Articles 8 and 10 respectively of the Convention.

Today's judgment observed that the private lives of those in the public eye had become 'a highly lucrative commodity' for certain sectors of the media, and publication of news about such people contributed to the range of information available to the public.

The campaign for tighter privacy was taken all the way to the European Court of Human Rights

The dissemination of such information was 'generally for the purposes of entertainment rather than education' but it undoubtedly benefited from the protection of 'freedom of expression' rules.

That protection might be overruled by the requirements of the 'right to privacy' rules 'where the information was of a private and intimate nature and there was no public interest in its dissemination.'

The judgment concluded: 'However, looking beyond the facts of Mr Mosley's case, and having regard to the chilling effect to which a pre-notification requirement risked giving rise, to the doubts about its effectiveness and to the wide margin of appreciation afforded to the UK in that area, the court concludes that Article 8 (the right to private life) did not require a legally binding pre-notification requirement.'

Lord Pannick QC said the High Court damages award did not restore Mr Mosley's privacy

This morning, speaking on BBC Radio 4's Today programme, Mr Mosley outlined the reason for him taking the case to Strasbourg. He said: 'Once they (newspapers) have published it they can't unpublish it, they can't take it out of the public mind.

'You only need the freedom of the press when it's something that the public need to know', adding that 'the story of people's sexual escapades... they are not matters of public interest.

Referring to a Twitter account set up that revealed names linked to injunctions, presenter John Humprhys suggested that social networking sites 'made a nonsense' of the gagging orders.

Mr Mosley responded: 'As far as Twitter's concerned, It's just that, Twitter, it's one step up from the pub.'

He also said that if Jemima Khan hadn't reacted to the fact that her name had wrongly been put on the list celebrities named, there wouldn't be the 'hysteria in the press saying it's the end of the injunction'

His lawyer told a hearing in January that the failure of UK law to oblige newspapers to notify their 'victims' before exposing their private lives violated the European Human Rights Convention, to which Britain is a signatory.

The High Court damages award did not restore Mr Mosley's privacy, said Lord Pannick QC - but 'prior notification' would have give him the chance to seek an injunction preventing publication.

If the Human Rights judges had supported his case the Government might have to have reinforced privacy laws, obliging editors to inform celebrities about stories concerning them before they appear.

The move would not only have fuelled the row over the use of super-injunctions to protect celebrities and public figures from the media spotlight, but also add to calls for Strasbourg judges to stop interfering in UK interpretation of human rights rules.

The Government argues that national authorities should have a 'wide margin of appreciation' in deciding how national laws should be made compatible with human rights rules under the Convention.

It says the current UK rules strike a good balance between the 'right to private life' and the 'right of freedom of expression'- both explicitly guaranteed by Articles 8 and 10 respectively of the Human Rights Convention.

Newspapers bosses warned that imposing a 'pre-publication notification' to toughen the 'right to private life' would amount to a breach of the 'right to freedom of expression'.

But at the time of January's hearing Mr Mosley commented: 'If a newspaper is going to write something about your private life, or something you might reasonably wish to keep private, they should tell you beforehand.

'I think press freedom is absolutely vital and it has to be protected at all costs. It's the basis of a modern democracy - but that's a very different thing from newspapers concealing from you that they are going to publish something that's illegal.'

He insisted his legal case did not threaten press freedom because 'in 99 cases out of 100, if they (newspapers) are going to write something about someone of any great interest they will approach the person.

'What we are talking about here is cases where they don't come to you, they even perhaps publish a spoof first edition, because they know if they did you would seek an injunction.'

Currently, newspapers often keep stories secret to avoid getting an interim injunction from the subject of the claims, postponing publication.