Max Mosley – enough already

11 May 2011 by Rosalind English

I promised an analysis piece in my post on the Mosley judgment but there has been such an outpouring of comment and opinion on the case that a more useful exercise is to provide some sort of guide through the maze of material already out there.

This rather toothless ruling has, needless to say, received enthusiastic acclaim by the mainstream media, smarting with indignation over Twitter’s coup de théâtre re superinjunctions. See the Guardian coverage and the Express’s aptly named article Max Mosley Loses Privacy Case Amid Super-injunction Chaos. The Daily Mail of course goes straight to the Naughty Step with its triumphalist and inaccurate headline Victory for freedom of speech: European court rejects Mosley’s bid to impose new constraints on Press. First, it wasn’t the European Court (more commonly known as the ECJ). It was the European Court of Human Rights. Second, the rather mealy-mouthed judgment is hardly a ringing endorsement for freedom of speech; as Hugh Tomlinson points out, the press won the battle but the judgment confirms that it has lost the “privacy war”:

The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved [114].

Anyone searching the judgment for a broad-ranging attack on the new of law of privacy in general will be disappointed. The court is at pains to emphasise that Article 10 does not prohibit “prior restraints on publication” and that

prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest [117].

And as David Allen Green observed in his excellent critique, English law on the misuse of private information remains unchanged:

Mosley would still be able to bring his case and the News of the World would still have to pay substantial damages and costs. There is nothing in this decision which actually changes the law as it stands.

More interesting than the battle cries are the reflections on the inadequacy of our laws to prevent the destruction of lives and reputation by the press, the internet and the apparently ungovernable social network sites. Convention rights upholding freedom of speech and respect for privacy all sound fine and highly moral, but in fact morality is displaced when privacy is constantly required to step aside in the “public interest”, particularly where courts are, amazingly, prepared to accept that the cynically trumped-up “Nazi” element of the story constituted such public interest (see paras [126]- [127] of the judgment, which suggest that the News of the World could have evaded any prior notifcation rule by invoking the “public interest” exception).

The weakness of Convention protections in the face of rampant internet publicity bespeaks a real crisis in which the shards of legal vocabulary about “justification”, “responsible publication” , “substantial truth” and “public interest” and so on no longer have a point of reference. When we hear judges – as in the Mosley case – using what the American academic Stanley Fish calls “the rhetoric of regret” in refusing the ruined individual any proper redress, because the lies have already gone global

…when a judge tells you that he hates the activity he is about to allow, has contempt for those who are engaging in it, and profound sympathy for those who are its victims

– either the upholders of the law have lost interest in solving the problem, or the problem is beyond them. Let us hope that this latest Twitter crisis ignites some focussed thinking about internet regulation, rather than further expensive campaigning over the interesting but increasingly irrelevant tension between Articles 8 and 10.

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Related reading:

• What the Mosley privacy decision really means
  
• Pre-notification rejected by Strasbourg- Hugh Tomlinson QC
• Absence of prior notification requirement does not violate article-8