Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
to be published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Privacy and the United Kingdom: Crossroads at the ECHR [First published on the Media Lawyer Press Association website December 2009]
By Tim Crook.
The fourth section of the European Court of Human Rights has two key cases against the United Kingdom under consideration in relation to media privacy. One involves Max Mosley’s campaign to ensure that publishers about to intrude on the private lives of anybody should be legally obliged to provide notice. (Application no. 48009/08) The other is an application by Mirror Group Newspapers that the House of Lords ruling in favour of global model Naomi Campbell in May 2004 is a breach of freedom of expression Article 10 of the convention. (Application no. 39401/04) Both cases could determine the future development of Britain’s new media privacy law.
A key problem facing the British media is that previous English common law priority for freedom of expression, exemplified in the 1891 case of Bonnard v Perryman ([1891 B.735] – [1891] 2 Ch. 269) that blocked prior restraint in cases the media sought to justify is being challenged by a different standard in European Law. ECHR jurisprudence states that Article 10 freedom of expression is equal to other standing rights such as Article 8 privacy and neither has hierarchy over the other. Furthermore, Strasbourg case law overlaps the right to reputation into the right to privacy.
European law gives an elasticity to the privacy concept so that it encompasses the right to dignity, identity, integrity and reputation. The zone of privacy interaction is psychological and social. The US First Amendment does not provide an absolute superiority to freedom of the media and expression, but it follows and exceeds in some respects the historical English common law doctrine of free press priority/hierarchy. The US constitution does not have a privacy amendment. The UK courts under sections 2 and 6 of the Human Rights Act 1998 are obliged to ‘take into account’ ECHR case law and give effect to convention rights. The British courts have not been inclined to reserve the doctrine of common law free speech priority in ‘the margin of appreciation.’
The situation is further complicated by a class-style cultural divide in Britain between ‘quality’ and ‘tabloid’ media. The former fights for media freedom in advocating libel law reform in order to pursue what it sees as high political speech investigative journalism against global corporate and state abuse of power. The latter fights for a public interest in being able to report the personal and social conduct of celebrocrats in terms of their morality and status as cultural role models. The academic and political cognoscenti support ‘high political speech’ public interest, and express contempt for the tabloid interest in what they usually condemn as prurient ‘title tattle’.
In the Mosley case, Mr Justice Eady explained that the reporter and editor of the News of the World needed to believe there was a Nazi element to his engagement in sado-masochistic ritual as well as a mocking of the treatment given to concentration camp inmates ‘in order to forge the somewhat tenuous link between the Claimant and his father’s notorious activities more than half a century ago and, secondly, to construct an arguable public interest defence.’ ([2008] EWHC 1777 (QB) (24 July 2008))
The judge decided the newspaper was mistaken in its interpretation of what took place. What was left in terms of tabloid public interest he expressed in his ruling on the issue of an interim injunction: ‘The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants.’ ([2008] EWHC 687 (QB) (9 April 2008))
In the Naomi Campbell case the Law Lords were unanimous in agreeing with Lord Carswell’s view that the model ‘was a well known figure who courted rather than shunned publicity, who had consistently lied about her drug addiction and compared herself favourable with others in the fashion business who were regular users of drugs. By these actions she had forfeited the protection to which she would have been entitled and made the information about her addiction and treatment a matter of legitimate public comment on which the Press had been entitled to put the record straight.’
But three of the Law Lords decided that revealing the detail of her therapeutic treatment at Narcotics Anonymous was the tipping point in the breaching of her privacy. MGN argue ‘it was in the public interest to publish the fact of Ms Campbell’s drug addiction in light of her previous false statements and that it was for the editor to decide how much detail to publish to ensure the credibility of the story especially as he was publishing information on issues of public interest, was acting in good faith and on an accurate factual basis.’ They also alleged that Article 10 rights were further breached by the disproportionate level of legal costs they had to pay Ms Campbell which were in the region of £990,000 when the actual award for damages was £3,500.
Although the government has indicated it will address the issue of CFA success fees in libel and privacy costs, and Lord Justice Jackson will be reporting on all aspects of the cost of civil litigation, including libel law on January 14th 2010, it looks like the MGN application will proceed to full hearing in Strasbourg.
In the Mosley case the United Kingdom government is being asked if it had ‘a positive obligation to protect the applicant’s privacy by providing for a legal duty (a “notification requirement”) on the News of the World to warn him in advance of publication in order to allow him to seek an interim injunction?’
Mosley’s legal team also complains under Article 13 that despite winning £60,000 damages this does not ‘restore his privacy to him;’ only ‘an interim injunction prior to publication could constitute an effective remedy in his case.’
In the MGN case the UK government needs to decide whether to acknowledge that the ‘chilling effect’ of CFAs in libel and privacy breaches Article 10, and whether to defend the Law Lords’ breakthrough ruling on media law privacy in favour of Naomi Campbell. In the Mosley case the government needs to decide if it wishes to further erode the status of freedom of expression by adding a prior notice duty to potential breaches of the new ‘right to respect for privacy.’
