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May 10, 2011

ECHR rejects Mosley privacy application

Category: News

Pre-notification of privacy subjects unnecessary, Strasbourg court rules


The European Court of Human Rights has rejected Max Mosley’s application for a ruling that Article 8 required the introduction into domestic law of a legally binding requirement that the media notify a subject when an article discloses private information about them.

Mr Mosley successfully sued The News of the World in 2008 for damages for publishing a series of articles and videos concerning his extra-marital sex life. Mr Mosley, a former President of Formula One motor racing, made an application to the European Court of Human Rights on the basis that the High Court’s award of damages of £60,000 (the highest ever award of general damages for misuse of private information) was inadequate, and that the protection of the interests within Article 8 necessitated a legal requirement that the media pre-warn those whose private life would be intruded upon by any published disclosure. Once lost, privacy cannot be regained, lawyers for Mr Mosley argued.

Several media organisations and media trade associations intervened in the case arguing that prior notification was inconsistent with Article 10, that the issue should be afforded a wide margin of appreciation and did not reflect continental legal practices or the practicalities of journalism.

The European Court took the view that a notification system was unnecessary. The UK was permitted a wide margin of appreciation in such matters and had in place measures to protect Article 8 interests in any event: damages and costs were a deterrent. The Data Protection Act 1998 and the availability of interim injunctions in civil proceedings provided further protections. No jurisdiction had introduced a notification system. The level of fines that would be necessary to enforce compliance with a notification system would be incompatible with Article 10, the Court reasoned in its judgment.

The court noted the doubts over the effectiveness of Mr Mosley’s proposals and recognised the potential chilling effect on journalism in the public interest.

The European Court, like Eady J in his decision following trial, was however critical of the approach to publication taken by the newspaper in 2008.

5RB‘s Iain Christie was junior counsel for the UK and David Sherborne (instructed by Collyer Bristow) was junior counsel for Mr Mosley.  In the domestic proceedings, Mark Warby QC (instructed by Farrer & Co) acted for News Group Newspapers and James Price QC was lead counsel for Mr Mosley.

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