No obligation to notify prior to publication

On 30 March 2008, the News of the World published a front page article with intimate details of then Formula 1 motor racing chief Max Mosley's sexual activities. The publication of the articles were found to be a breach of his privacy and Mr Mosley was awarded damages.

Having won his case in the UK and obtaining damages at a domestic level, Mr Mosley pursued a claim in the European Court of Human Rights targeting the prevailing situation in the UK where there is no legal requirement to notify the subject of an article which discloses material about their private life before publication.

Mr Mosley claimed the UK violated its obligations under European law to ensure respect for an individual’s private life. He claimed the UK failed to impose an obligation on the News of the World to notify him of a story about him in advance of publication. Had he been notified, he may have obtained an interim injunction and prevented publication of the article.

The Court found the UK has a positive obligation to ensure effective protection of the right to respect for private life. However, when the individual is not aware of a pending publication about his or her private life, the Court took a different view.

The Court considered it necessary to balance the competing interests of the freedom of the press against an individual’s privacy. The implications of Mr Mosley’s claim was not limited to sensationalist reporting but extended to political reporting and serious investigative journalism. If an obligation to pre-notify was imposed, stories which have a legitimate public interest would be at high risk of being prevented from publication.

The obligation to pre-notify was viewed as inconsistent with the role of the press in informing the public and dispersing information and ideas on matters of public interest. Having regard to the ‘chilling effect’ to which a pre-notification requirement would give rise to, the Court held that there was no requirement for a legally binding pre-notification requirement.

The Court also considered that an obligation to pre-notify would only be as effective as the sanctions imposed for failing to observe it. Unless the sanction imposed is set at a high level, it is unlikely to deter newspapers from publishing private material without pre-notification.

Although Mr Mosley’s claim was dismissed, the Court heavily criticised the conduct of the News of the World. There is a distinction between reporting facts (even if controversial) that contribute to a debate of general public interest in a democratic society, compared to making tawdry allegations about a person’s private life. The Court noted that the News of the World published imagery obtained through ‘clandestine recording, which undoubtedly had a far greater impact than the articles themselves’.

This article is from our August 2011 edition of Privacy Update.