Max Mosley, the former President of the World Motor Sports Governing Body, the FIA (International Automobile Federation), has lost his privacy appeal to the European Court of Human Rights in Strasbourg. He wanted the Court to require newspapers to warn people before printing stories exposing their private lives.

By Ian Blackshaw*

In 2008, the UK High Court awarded him damages of £60,000 following a ruling that the News of the World newspaper had invaded his right to privacy by reporting on his rather colourful and lurid sex life.

He argued before the Strasbourg Court that damages were not sufficient compensation because they were awarded ex post facto – in other words, after the details of his private life had been published and the damage to his reputation had already been done. One could not ‘un-publish’ the story and, therefore, money alone could not restore his reputation!

European Convention on Human Rights

However, the Court, whilst criticising the conduct of the News of the World, held that, under the European Convention on Human Rights of 1950, the press were not required to pre-notify the subject of the story. The Court said that it had to assess and balance more broadly the right to privacy under article 8 with the right of freedom of expression under article 10 of the Convention. The Court also said that the right to a private life in the UK was already protected by self-regulation of the press through the Press Complaints Commission; access to the civil courts for damages; and, where appropriate, interim injunctions.

In the UK, we now have so-called ‘super’ injunctions, where the very fact that an injunction has been granted is also kept confidential. There has been much criticism recently of these injunctions, mainly on the ground that they are open to the rich and famous, including sports ‘stars’, especially footballers, and not to the ordinary citizens who cannot afford expensive lawyers to obtain them for them, and, therefore, they have no legal protection whatever!

Margin of appreciation

In effect, the Court was applying the so-called ‘margin of appreciation’ provision in the Convention in striking the right balance between the freedom of the press, on the one hand, and the right of an individual to have his/her privacy protected by law, on the other hand. This is a difficult balance to achieve in practice – what is in the public interest and what is not is a difficult question to answer and will vary from case to case. In this context, it should always be remembered that the public interest is a rather vague concept – it has been described by one English Judge as “an unruly horse” – and also that what interests the public is not necessarily in the public interest!

Chilling effect

Furthermore, the Court was of the opinion that a pre-notification legal requirement would have a “chilling effect” on serious investigative journalism. Also, to make this legal requirement effective and work, in practice, there would need to be adequate sanctions.

Not unnaturally, Mosley was “disappointed” with the Court’s ruling and thought that the Judges “had underestimated the dangers posed by UK tabloid newspapers.” As is generally known, they are ruthless in getting their stories and generally follow the precept: “publish and be damned!

However, the Chairman of the UK Press Complaints Commission welcomed the ruling and said that it would be a “diminution of our democracy, never mind our freedom of expression” if injunctions could be gained every time somebody sought to block a story!

* Professor Ian Blackshaw is an International Sports Lawyer and an Honorary Fellow of the TMC Asser International Sports Law Centre.

For more information on the protection of image rights of sports persons, see ‘Sports Image Rights in Europe’, I.S.Blackshaw and R.C.R.Siekmann (eds.), 2005, TMC Asser Press, The Hague.

Read also: Human rights court dismisses Mosley privacy case:- http://www.rnw.nl/english/bulletin/human-rights-court-dismisses-mosley-a...