Mosley loses privacy case in Europe but vows to fight on

The European Court of Human Rights said it needed to consider the 'chilling effect' on the rest of the media of imposing a requirement for prior notification
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The Independent Online

Max Mosley has lost his legal battle to force newspapers to warn people before publishing stories about their private lives, but the former world motor sport boss said last night he would appeal the decision in the Grand Chamber of the European Court of Human Rights (ECHR).

The Strasbourg court, though it rejected Mr Mosley's case, was critical of the News of the World's coverage of the former Formula One chief's involvement in a sex orgy, which the paper revealed in a front-page story. A British court awarded Mr Mosley record privacy damages of £60,000 in 2008 after the paper failed to prove that there was a Nazi theme to the orgy and that its article had been published in the public interest.

The ECHR said the newspaper's actions were "open to severe criticism", particularly its decision to release photographs and video footage which had been obtained through hidden recording. That material, the court said, "appears to have been included in the News of the World's coverage merely to titillate the public and increase the embarrassment of the applicant".

But the ECHR said it needed to consider the "chilling effect" on the rest of the media of imposing a requirement for prior notification before the publication of stories impinging on a person's privacy. Referring to the need to guarantee a person's right to privacy under the European Convention on Human Rights, the judges ruled: "The court is of the view that article eight does not require a legally binding pre-notification requirement. Accordingly, the court concludes that there has been no violation of article eight of the convention by the absence of such a requirement in domestic law."

Mr Mosley said he would refer the court's decision to the Grand Chamber. "My experience is that UK tabloid newspapers will stop at nothing to deny us privacy," he said. "They trade in sex scandals using 'dark arts' in the full knowledge that what they do ruins lives. I think it is wrong that they can continue to do this with impunity."

Freedom of expression campaigners welcomed the court's decision. "The issue at stake here was not the sex lives of celebrities," said John Kampfner, chief executive of Index on Censorship. "Serious investigative journalism would have suffered."

Andrew Terry, media and defamation specialist at the international law firm Eversheds, agreed. "The UK press already has to consider an individual's right to privacy when deciding whether or not to publish," he said. "An obligation to pre-notify was always going to be unworkable."

Amber Melville-Brown, a media and reputation management specialist at the law firm Withers LLP, said the decision was "a success for the media" but added that the press needed to demonstrate that it was interested in "real stories" rather than salacious gossip. "It will be a success for society if the media show good sense in not abusing the trust that the European Court has placed in it to act responsibly, and use this opportunity to publish real stories of significant public interest, and not as an excuse unfairly to invade the private lives of members of the public," she said.

Others called for further debate on which stories were deemed to be in the public interest. Craig Connal QC, a solicitor-advocate at McGrigors, said: "Had there been a greater focus on establishing where the line should be drawn on public interest, perhaps we could have got to a point where judges at a national level – and critically editors of major news outlets – have a clearer basis for making decisions around privacy."

Stig Abell, director of the Press Complaints Commission, said he expected the issue of notification to be discussed at the next meeting of the PCC's Code Committee.

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