Max Mosley continues fight for prior notification ruling over privacy stories

Former Formula One chief Max Mosley has responded to challenges to his European Court of Human Rights application calling for newspapers to notify subjects before publishing details about their private lives.

In a statement issued at the end of last week, Mosley's solicitors Collyer Bristow, said: "Mr Mosley's case [Mosley vs United Kingdom] is simple. Without an obligation to notify, a newspaper can publish information which irrevocably destroys a person's privacy.

"Even if publication is unlawful, the victim is left without an effective remedy. No court can remove the information from the public mind once it has been published. The damage is done and it is permanent."

This is an argument Mosley has made repeatedly since winning damages of £60,000 from the News of the World for breach of privacy after the paper accused him of being involved in a Nazi-themed orgy.

In September 2008 Mosley issued an application in the European Court of Human Rights (ECHR) and in April 2010 the UK government responded, following submissions made by third parties, including Guardian News and Media, the Media Legal Defence Initiative and the Media Lawyer's Association.

"The only effective means of protecting privacy is to prevent publication and thus stop an illegal breach before it happens," says Mosley's solicitor.

"But you cannot do that if you don't know about it in advance. A legal action for breach of privacy after publication is not an effective remedy, furthermore it attracts publicity which may worsen the victim's position. As a result, a victim very rarely sues."



Mosley's solicitor further argues that the UK is failing to protect privacy because "our uniquely intrusive tabloid newspapers know that they can circumvent the individual's right to privacy by concealing their intention to publish.

"It is only by compelling newspapers to notify those about whom they intend to publish private information, that the UK can fulfil its obligations under the Convention."

But, the statement continues, "...even if notified it remains for the individual to persuade the newspaper or a Judge (should he or she choose to do so) that publication would be unlawful and counter-arguments would be heard on behalf of the newspaper".

There have been submissions to the court to counter Mosley's argument. Lord Lester of Herne Hill QC and Charles Potter, acting for Guardian News & Media, for example, argue that imposition of such a duty as part of Convention law "would have a truly draconian effect on the media acting in the public interest as an independent public watchdog". [PDF document at this link, via the Inforrm Blog]

The existing system of injunctive relief and the ability to sue for damages after the event is "proportionate" and "adequate," they say.

The UK government also contests Mosley's argument and calls on the European court to rule his application "inadmissible". Mosley, the government says, is no longer a victim and has failed to exhaust all his domestic remedies. [PDF document at this link, via the Inforrm Blog]

Mosley and his solicitors have now responded to these challenges:

"The UK Government's response resists Mr Mosley's application. We say, on behalf of Mr Mosley that neither the UK's submissions nor those of the third parties provide an answer to the issue of principle that the application raises and that the need for prior notification is unassailable."

The debate continues outside the court as well; in response to an earlier paper by Professor Gavin Phillipson, a recent working paper for the LSE Law, Society and Economy series, Dr Andrew Scott concludes that the ECHR should not find the UK in breach of its obligations but examines the case for the desirability of prior notification, and "the availability of other means to encourage the practice".

The Inforrm blog has collected the relevant documents in the Mosley vs United Kingdom case at this link here. Journalism.co.uk will report more on this case as it develops.

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