Sex tape victim Max Mosley fails to stretch privacy law before the European Court of Human Rights
Sex Tape Leads to Struggle About Pre-Notification Right
The European Court of Human Rights ("ECHR")
has rendered a judgment in the Mosley vs UK case, about
which we already wrote
here,
here and
here on our MediaReport website (in Dutch).
The ECHR has established that the United Kingdom has not
violated the privacy rights of Mosley under Article 8 of the
European Convention on Human Rights. Privacy victims do not have
a right to inspect the articles in which they feature prior to
publication. In the United Kingdom Mosley had opposed the
publication by the English tabloid Sunday newspaper News of
the World of a video in which Mosley is shown while having
sex with a number of prostitutes.
For background information see
this earlier posting on MediaReport (in
Dutch). After Mosley had won this case, he instituted legal
proceedings against the United Kingdom before the European Court
of Human Rights, because he was of the opinion that the United
Kingdom should have ensured that he should have been notified
prior to publication, because according to him, this was the
only way to avoid the damage that he had suffered. The ECHR does
not agree.
Judgment of the ECHR: Prior Inspection Would Have a Chilling
Effect
Although the right to respect private life of Article 8
of the European Convention on Human Rights may also imply positive
obligations for the Member States, the English legal system
contains sufficient measures to protect personal privacy. In
principle, damages in arrears provide sufficient satisfaction for
an infringement of personal privacy as protected by Article 8 of
the European Convention on Human Rights. The ECHR has furthermore
explicitly pointed out that Mosley’s claim that a right to
inspection prior to publication should be implemented does not only
have consequences for a case like Mosley's, which concerns a
publication of a sex video by a “sensationalist” tabloid newspaper,
but also for serious investigative journalism and political
reports.
The ECHR has also pointed out that “any pre-notification
requirement would only be as strong as the sanctions imposed for
failing to observe it.” That is an additional point of concern.
After all, penalties or penal sanctions may be in conflict with the
freedom of expression of Article 10 of the European Convention on
Human Rights, especially if it concerns a form of censorship prior
to publication. This threat would have a chilling effect on
political reporting and investigative journalism. The ECHR has
therefore concluded that Article 8 of the European Convention on
Human Rights does not require a right of inspection. Mosley’s claim
has therefore been rejected.
Relevance for the Entertainment Press
The judgment also contains an interesting consideration
about the entertainment press:
“The Court … recognises that the private lives of those in
the public eye have become a highly lucrative commodity for certain
sectors of the media … The publication of news about such persons
contributes to the variety of information available to the public
and, although generally for the purposes of entertainment rather
than education, undoubtedly benefits from the protection of Article
10. However, as noted above, such protection may cede to the
requirements of Article 8 where the information at stake is of a
private and intimate nature and there is no public interest in its
dissemination.”
Although at first sight this might look like bad news for the
people in the Netherlands that love showbiz news, on a further
reading it does not seem so bad. On the basis of the Princess
Caroline of Monaco judgment, it is now often said that
“non-news” about the stars (”Princess Caroline out and about in
Paris”) may only be published if there are reasons of public
interest. The ECHR has now confirmed that this goes too far. Such a
publication may be a problem if there is no public interest and it
concerns information of a personal and intimate nature, according
to the ECHR. Especially the claim that it must be of an intimate
nature will not apply in many cases.
Here I have written an article before about
the Caroline II case, a continuation of the earlier
Caroline judgment, which currently lies before the ECHR.
The verdict in the Caroline II case is also expected
shortly. In that case more clarity will probably be provided
about the boundaries for the entertainment press.
Please find the judgment in the Mosley case
here and a press release of the ECHR
here.
Mosley
has indicated that he will appeal against
the judgment to the Grand Chamber of the ECHR: “It’s not
finished yet. It’s round one to the Government. I hope there is
going to be a round two, and it will end up a knockout in my
favour,”
according to Mosley.