Opinion: “Prior notification in privacy cases – A response to Andrew Scott” by Max Mosley

As a participant, but not an academic, perhaps I might be allowed to comment on Andrew Scott’s very interesting contribution to the debate on prior notification.

His two principal arguments are, first, our application to the ECtHR is founded on a false premise, namely  damages can never be an adequate remedy for breach of privacy;  second, even if breach of privacy is irreparable, there are many examples of irreparable damage which the law compensates with damages, so damages can suffice even though privacy, once breached, can never be restored.

In support of the first, he cites some judicial authority. However with the exception of Mr Justice Tugendhat, (who did not actually say damages are an adequate remedy, merely that they can be), the cases cited are several years old. And even in those days, judicial acknowledgement of the inadequacy of damages in privacy matters far outweighed the authorities cited.

Since then, the world has moved on.  The judiciary and practitioners are becoming aware of the fundamental changes brought about by the Internet. What until very recently was quickly lost as wrapping paper, is today permanently and universally available at the touch of a button. Privacy, once invaded, is breached again and again, world-wide and in perpetuity. It is impossible to remove private information from the Net, even after winning a privacy action, and will almost certainly remain so in default of an (extremely unlikely) international agreement.

For this reason, a judicial view of privacy and confidential information which evolved in an earlier era is no longer apposite. To apply it to the age of the global Internet is like trying to solve the problems of modern road traffic with the rules of the horse and cart.

Next, on the basis of Section 12 HRA (and the DPA), Scott says Parliament is happy with damages only.  But had, as he suggests, Parliament believed damages were an adequate remedy for breach of privacy, with no need for interim injunctions, it would have contented itself with extending to privacy the well-established no-injunction rule in libel. In fact, Section 12 specifically allows for interim orders. This demonstrates that Parliament did indeed recognise their need in privacy cases.

There may of course be an occasional case where damages will be considered adequate, for example where the private information is relatively trivial and does not involve the revelation of intimate personal details. But such cases are the exception, and an argument against pursuing or awarding an injunction, not an argument against prior notification.

For his second point, Scott argues that because damages are given in personaI injury cases despite an injury being irremediable, it follows that the same principle should apply to privacy cases. He postulates a child throwing a stone and injuring another. The victim’s eye, cannot be repaired. Yet damages are the only remedy. This ignores the very obvious fact that a judge, were he in a position to do so, would stop the first child throwing the stone. So as an argument against prior notice, this does not work. And, indeed, reams of health and safety legislation testify to the principle that prevention is better than cure.

In general, the law tries for restitutio in integrum. Where restitutio is not possible, but prevention is possible, a powerful argument is needed to justify depriving the citizen of the protection afforded by prevention. The fact that damages may be the only remedy available in certain cases does not remove the need to make other, more effective means available whenever this can be done.

Then Scott suggests that although an award of damages may not be the best or even a desirable remedy, “it allows just satisfaction and hence is an effective remedy in law”. At this point, it is perhaps helpful to allow real life to intrude into the debate.

The damages in a successful privacy action will be less than the difference between the costs paid by the newspaper and the claimant’s bill from his own solicitors. This was so even in my case where the damages apparently set a new record. Winning a privacy case will therefore leave the claimant out of pocket (for me, upwards of £30,000).

On top of that, the court proceedings will give the newspaper license to publish once again the information the claimant wished (and, if successful, was entitled) to keep private, with the added bonus for the newspaper that its witnesses and lawyers can make outrageous statements in court which it can then publish under the protection of absolute privilege.

All of this will be pointed out to the victim at his first meeting with his lawyers. They will also tell him that success is not guaranteed and if he loses he will have to pay costs of hundreds of thousands of pounds. This would remain true even in the highly unlikely event of exemplary damages or indemnity costs becoming available in the future.

It follows that only someone who is both irrational and wealthy will sue. The reality of the current situation in the UK is that once the private information has been published, the courts are closed to the normal citizen, no matter how outrageous the infringement of his privacy may have been.

However, given prior notice, the victim, if he can satisfy a judge that he is “more likely than not” to win his case, will get an interim order stopping publication until after trial. This does not require great wealth. It costs around 5% of a full trial. An order will not deprive the newspaper of its right to go to trial. If it wins, it can publish the entire story. But if it is wrong and loses the case, the matter remains private. The victim’s privacy is maintained, as it should be.

Currently, when a tabloid intends to publish information which it knows is a gross breach of Article 8, it will go to elaborate lengths (even including a “spoof” edition) to prevent the victim finding out until after the story has been published. Then the newspaper can relax, safe in the knowledge that after listening to his lawyers, the victim will conclude he would be mad to sue. It is difficult to agree with Scott that this state of affairs, which will continue unless prior notice is made obligatory, “allows just satisfaction” and provides “an effective remedy in law”.

Two additional points: first, a further benefit of prior notification is that the oft-cited problem of the non-specialist judge, called upon to decide on an interim order in the middle of the night, would disappear. A period of notice would enable the matter to be brought before an expert judge.

Second, our application does not involve asking the ECtHR to balance Convention rights. It merely asks that the individual UK citizen be given the means to exercise his or her Article 8 rights in a country where the law currently allows the media blatantly and cynically to circumvent them.

Scott says that if our argument were correct, the question of whether “in the ultimate balance” privacy rights are outweighed by the public interest would not arise. Indeed, but there is no abstract “ultimate balance” between Article 8 and Article 10, as Scott appears to suggest. It is well established that neither Article trumps the other. It is only when an individual case reaches court that Article 8 and 10 rights come to be balanced against one another, with the judge applying the well-known “intense focus” to the particular facts of the case.

Finally, a general point. In standing back from this question and assessing political and public opinion in the UK, one must remember the media have an immensely powerful lobby – probably the most powerful lobby in British politics. Press barons like Murdoch and Dacre have free access to Downing Street; all the political parties depend on and compete for their favours. Contrast the position of the individual citizen in the UK. He or she has no such access and no means to combat the power of a press which intimidates politicians and even seeks to belittle individual judges. There is no legal remedy or means available in the UK by which the citizen can challenge the legal status quo. Only in Strasbourg is there a realistic possibility of a balanced and fair outcome.

Unsurprisingly, I believe the arguments in favour of prior notice are overwhelming. Nevertheless I am full of admiration for the way in which Gavin Phillipson and Andrew Scott have contributed clarity to the issues. It will be interesting to see how matters evolve.

Whilst the above is my immediate reaction to Andrew Scott’s paper, anyone wishing to view the full legal arguments in my application to Strasbourg in response to the Government will find them here.

Max Mosley