The discussion in the first part of this post clearly showed that domestic law did not provide Max Mosley with an effective remedy for his invasion of privacy of which he complained before the European Court. Strasbourg’s finding that art. 8 does not impose a positive obligation on Contracting States to implement a measure where individuals are provided with notification in advance of an intrusive publication being made so that they may seek an interim injunction is thus open to strong criticism.
The consequence of such a finding is that individuals like Mosley who are the victims of sensationalist and intimate details of their private life being reported by the press are unable to receive any effective and meaningful protection from the Convention. The unsatisfactory nature of this position is highlighted even further by the value of the speech in issue. As Strasbourg commented, “there was no public interest or justification in the publication of the articles or the images” (at ) in the present case; and “[s]uch reporting does not attract the robust protection of Article 10” (at ).
Two factors motivated Strasbourg in reaching the conclusion that art. 8 does not require individuals to receive notification in advance of intrusive publications being made by the press. The first was the chilling effect that the requirement would have on free speech, and the second was the width of the margin of appreciation conceded to Contracting States. The remaining parts of this post will call into question Strasbourg’s reasoning in relation to both issues, and therefore cast doubt on the overall conclusion reached by the European Court.
Advance Notification and Press Freedom
The third party intervention made by the Media Legal Defence Initiative and Others to the European Court submitted that a notification requirement would be incompatible with the rule against prior restraint. It was stated that:
“It would be wrong in principle and contrary to the Anglo-American tradition of freedom of speech for a UK Government to require newspapers to identify (and thus invite injunction) whenever they plan to publish newsworthy information that may … disrespect privacy. A notification requirement would destroy the rule against prior restraint.” (At ).
The suggestion that there exists a rule against prior restraint in the Convention which prevents the imposition of pre-publication restrictions on the media before they make publications which infringe privacy is incorrect. Strasbourg has stated on a number of occasions that “Article 10 does not prohibit the imposition of prior restraints on publication” (Observer and Guardian v. The United Kingdom (1992) 14 E.H.R.R. 153, at ; and Mosley v. The United Kingdom, at ). However, the European Court will require that any prior restraint on free speech is strictly necessary in the circumstances. As noted in Mosley:
“The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.” (At ).
The potential chilling effect on the right to freedom of expression led to Strasbourg finding that art. 8 does not impose a positive obligation for individuals to receive advance notification from the media before an intrusive publication is made. Forceful interventions were made to the European Court in relation to the chilling effect. The submission made by the Guardian suggested that the introduction of a pre-notification requirement would have an “adverse impact upon the practical enjoyment of the right to free expression by the media” (at ), which would “give priority to Article 8 rights over those under Article 10” (at ). As a consequence the ability of the press to publish information and opinions in the public interest would be seriously and disproportionately fettered. In a similar vein, the Media Legal Defence Initiative and Others submitted that providing several days’ notice to individuals would “delay [the] publication of important news … in a wide range of public interest situations” (at ).
It is suggested that the concerns of the European Court in relation to the chilling effect that the introduction of an advance notification requirement would have on free speech are misplaced. As revealed in the next part of the discussion, the enactment of such a measure would be accompanied by two safeguards for press freedom.
A Public Interest Exception
The Guardian submitted in its intervention that the introduction of a legal requirement to provide advance notification:
“Would give absolute protection to the right to respect for personal privacy at the pre-publication stage by effectively ensuring that an application could always be made for an interim injunction to prevent publication, thus creating an imbalance between the competing rights and freedoms.” (At  (emphasis added)).
This suggestion is somewhat misleading. It was found by the European Court that any pre-notification obligation would require an exception where the media would not be under a duty to notify an individual if doing so was not in the public interest. Although the enactment of such a measure would fall within a Contracting State’s margin of appreciation, the European Court considered that “in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a ‘public interest’ at stake would have to be sufficient to justify non-intervention, even if it were subsequently held that no such ‘public interest’ arose” (at ).
The European Court noted that, at the time of publication, the News of the World held the belief that Mosley’s sexual activates had Nazi overtones. Accordingly, it was said that even if the News of the World were under a legal obligation to notify Mosley of its intended publication, it would have chosen not to do so as it believed that the publication was justified in the public interest. Strasbourg’s conclusion is open to criticism on the basis that it overlooked its previous statement that any belief held that there was a public interest must be “reasonable”. Thus, although the News of the World may have held the belief that publication was justified in the public interest, the “casual and cavalier” manner, as described by Eady J., in which it had arrived at this conclusion meant that the belief could not be said to be reasonable.
In addition, Strasbourg rejected the introduction of a legal requirement to provide advance notification on the grounds that it would be ineffective. In reaching this conclusion the European Court reasoned that the press would only provide advance notification if there was a strong sanction imposed which ensured compliance. It was recognised that although a criminal sanction or fine set at a punitively high level would be effective in ensuring compliance, these measures would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism in breach of art. 10. The particular difficulty with Strasbourg’s reasoning on this point is that it is based on the unfounded assumption that the media will only adhere to a legal requirement if faced with a particularly strong sanction. This is not the case. Indeed, were this proposition correct, then the media would, quite simply, be unable to be regulated as sanctions for all measures would be ineffective if they were not to breach art. 10. In all but very few instances the press acts in accordance with the law not because of the sanctions which may be imposed for non-compliance, but because of the underlying ethics of journalism and the importance of acting both responsibly and in good faith. Such a point was largely overlooked by the European Court.
Section 12 of the Human Rights Act 1998
Although Strasbourg identified in its judgment the legal framework for granting injunctive relief to restrain publication under section 12 of the Human Rights Act 1998 (HRA), it failed to give any proper and due consideration to the fact that domestic courts will engage in a rigorous balancing exercise of the competing rights guaranteed by arts 8 and 10 when deciding whether to grant an interim injunction. Giving advance notification does not, therefore, mean that an interim injunction will inevitably be granted by the courts.
Section 12 HRA was enacted to give greater protection to media freedom. As noted by Lord Nicholls in Cream Holdings: “Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage” (at ). Under the pre-HRA position, an applicant seeking injunctive relief had to show under American Cyanamid that there was a “seriously arguable case” to be tried on the merits. Section 12(3) set a higher threshold test for the grant of an interim injunction against the media. It requires that such relief is not granted unless the court is satisfied that the applicant is “likely to establish that publication should not be allowed”.
When an application is made for an interim injunction in cases concerning the misuse of private information the courts will consider two matters when determining whether the applicant is likely to establish that publication should not be allowed. First, it must be considered whether the applicant enjoys a reasonable expectation of privacy in respect of the information which is intended to be published. In the event that the applicant does enjoy such an expectation, the courts must then, secondly, balance the competing Convention rights against each other in the parallel analysis. Guidance on the interplay between arts 8 and 10 in the parallel analysis was provided by Lord Steyn in Re S:
“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.” (At ).
This approach clearly identifies that domestic courts will not grant presumptive priority to either Convention right, and the value of both privacy and free speech will be equally scrutinised when they are structurally balanced against each other.
The robust protection given to press freedom by the parallel analysis will not only be afforded by the courts when undertaking a balancing exercise in respect of determining whether it is likely that publication will not be allowed at trial. In addition, courts must assess whether granting injunctive relief which restrains publication is both necessary and proportionate in the circumstances. This essentially requires the courts to consider if the applicant’s right to privacy can be protected by a means less intrusive than a prior restraint. In this regard, it has been stated that “[d]amages may be an adequate remedy in some cases, if not all” (LNS v. Persons Unknown  EWHC 119, at  per Tugendhat J.). Accordingly, interim injunctions will only be granted by the courts when all other remedies, most notably, damages are not effective.
Both the raised threshold test for granting injunctive relief contained in section 12(3) HRA and, to a much greater extent, the two levels of protection provided by the parallel analysis provide significant safeguards to press freedom. The importance of free speech is emphasised in section 12(4), which provides that particular regard must be given by the courts to the importance of art. 10. More specifically, when the proceedings relate to journalistic material, section 12(4) states that the courts must consider the extent to which the material has become available to the public and publication is in the public interest. In practice, therefore, any requirement to provide advance notification will not restrain the publication of political speech which reveals low level private information.
The Margin of Appreciation
The second reason why Strasbourg held that art. 8 does not impose a requirement for individuals to receive advance notification is because a wide margin of appreciation is conceded to Contracting States when ensuring compliance with positive obligations under art. 8 which have an impact on free speech. It was noted that Mosley’s case concerned the “publication of intimate details of his sexual activity” (at ) that had a “significant impact” (at ) on art. 8, and amounted to “a flagrant and unjustified invasion of the applicant’s private life” (at ). Ordinarily, serious interferences to private life will lead to a narrowing down of the margin of appreciation (see, for example, Goodwin v. The United Kingdom (2002) 35 E.H.R.R. 18). However, the European Court found that owing to the wider implications to art. 10, and, in particular, the possible chilling effect on political reporting and serious investigative journalism, the highly personal nature of the information disclosed could have no bearing on the width of the margin afforded.
Strasbourg’s approach in relation to the margin of appreciation doctrine is unsatisfactory and it is suggested that a different one should have been taken. Given the factual circumstances of the case, the breadth should have been narrowed down with respect to the complaint and, more generally, the issue of whether art. 8 imposes a requirement to provide notification to individuals in advance of publication. Where a wide margin of appreciation should have been afforded is in relation to the actual implementation of the measure to provide advance notification; finding the appropriate balance between safeguarding the competing interests in arts 8 and 10 in domestic law is a matter for Contracting States.
This post has identified how the current state of domestic law denied the applicant with an adequate remedy for his complaint made under art. 8 of the Convention. As the facts of the case reveal, once published it is near impossible to reverse the consequences of the dissemination of grossly intrusive and deeply intimate information. In such circumstances it is suggested that the only remedy which may protect the right to privacy is an interim injunction, and, in order for this remedy to be effective, individuals must receive notification from the media in advance of publication.
In its judgment Strasbourg noted that “[t]he assessment which … [it] must undertake in the present proceedings relates not to the specific facts of the applicant’s case but to the general framework for balancing the rights of privacy and freedom of expression in the domestic legal order” (at ). When undertaking this assessment, it has been argued that the European Court largely failed to adequately consider the safeguards that would be afforded to press freedom by a public interest exception, as well as those which currently exist under section 12 HRA. Measures similar to section 12 which rigorously protect political speech when an interim injunction is sought to restrain publication could be introduced in other jurisdictions across the Council of Europe.
The House of Commons Culture, Media and Sport Committee in February 2010 rejected the introduction of a legal requirement for the press to notify individuals in advance of publication, but recommended that the Editors’ Code be amended by the PCC to include such a requirement (Press Standards, Privacy and Libel (Second Report of Session 2009-10, HC 362-I), at paras 92-93). The inherent difficulty with such a recommendation, as demonstrated by events in January 2011 concerning the Express Newspaper, is that the media are entirely free to leave the regulatory competence of the PCC. Accordingly, it is submitted that any introduction of a requirement to provide advance notification should be in the form of a legal measure.
Dr. Ashley Savage is a Lecturer in Law at Northumbria Law School, Northumbria University: firstname.lastname@example.org.
Paul David Mora is a Lecturer in Law at BPP Law School, University College: Paulmora@bpp.com.
The full text of this article originally appeared in the Entertainment Law Review ( 22(8) Ent LR 233-241) and is reproduced with permission and thanks.