September 27, 2011
Mosley refused ECHR Grand Chamber
Prior notification crusade concludes
Max Mosley’s request for referral to the Grand Chamber of the European Court of Human Rights has been refused.
The Grand Chamber of the European Court of Human Rights has refused to accept the request of Max Mosley that the decision of the Court, dated 10 May 2011, be reconsidered. The Court had previously dismissed his application for a requirement upon the UK media that advance notification would be provided to an individual where an intended publication could amount to an invasion of his or her privacy.
The Court had concluded that, having regard to the chilling effect of a pre-notification requirement in privacy cases and the margin of appreciation, there was no violation of Article 8. Mr Mosley had sought reconsideration by a larger panel of justices.
Mr Mosley subsequently made a request under Rule 73 for a reference to the Grand Chamber. The request was examined by a panel of five judges of the Grand Chamber which decided, last week, to refuse the request. By way of letter dated 16 September 2011 it wrote:
“I write to inform you that the panel of five judges of the Grand Chamber, composed of Judges Jean-Paul Costa, Francoise Tulkens, Nina Vajic, Ineta Ziemele and Angelika Nussberger, decided on 15 September 2011 not to accept the applicant’s request that the above-mentioned case be referred to the Grand Chamber.
Pursuant to Article 44 § 2 of the Convention, the judgment of 10 May 2011 therefore became final on 15 September 2011. It is available on the Court’s Internet site (www.echr.coe.int ) (Article 44 § 3 of the Convention and Rule 78 of the Rules of Court).”
It remains, therefore, a matter for editors and their legal advisors as to whether the subject of private information shall receive notification of any intention to disclose prior to publication.
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, 5RB‘s Mark Warby QC (instructed by Farrer & Co) acted for News Group Newspapers and James Price QC was lead counsel for Mr Mosley.