ECHR Rules Against Max Mosley In Privacy Law Case
The European Court of Human Rights has ruled that under the European Convention of Human Rights, no requirement of pre-notification exists for the media to notify a subject that they intend to publish information about his or her private life. Thus, Max Mosley has lost his suit against the U.K. in the ECHR. Said the Court in part:
106. It is clear that the words “the right to respect for … private … life” which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 61-62, Reports of Judgments and Decisions 1996-IV).
107. The Court emphasises the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect (Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States’ margin of appreciation (see, inter alia, X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91; and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003-III). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59(c), Series A no. 216; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-XI).
108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 52, Reports 1998-V). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII; and Armonienė, cited above, § 38). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, § 48; A, B and C v. Ireland [GC], no. 25579/05, § 232, 16 December 2010; and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).
109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 77, ECHR 2002-VI). Thus, in cases concerning Article 8, where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-IV; and A, B and C v. Ireland [GC], cited above, § 232). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45; and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX).
110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation: where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997-II; and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-XIII). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010-…).
111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, § 142), rights which merit, in principle, equal respect (Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; compare and contrast Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30).
112. The Court emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law (see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009; MGN Limited, cited above, § 141; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Not only does the press have the task of imparting such information and ideas but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian, cited above, § 59; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010; and MGN Limited, cited above, § 141).
113. It is to be recalled that methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court to substitute its own views for those of the press as to what technique of reporting should be adopted (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). However, editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of … the rights of others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-X; Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 42, ECHR 2009-…; and MGN Limited, cited above, § 141).
114. The Court also reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life (see Armonienė, cited above, § 39). In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life (Von Hannover, cited above, § 65; Hachette Filipacchi Associés (ICI PARIS), cited above, § 40; and MGN Limited, cited above, § 143). Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, § 66; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 77, 9 November 2006; Hachette Filipacchi Associés (ICI PARIS), cited above, 40; and MGN Limited, cited above, § 143). While confirming the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, the Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it.
115. It is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31; and Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003-I). Accordingly, although freedom of expression also extends to the publication of photographs, the Court recalls that this is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate “information” about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés (ICI PARIS), cited above, § 47; and MGN Limited, cited above, § 143). Factors relevant to the assessment of where the balance between the competing interests lies include the additional contribution made by the publication of the photos to a debate of general interest as well as the content of the photographs (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002).
116. The Court recalls that the nature and severity of any sanction imposed on the press in respect of a publication are relevant to any assessment of the proportionality of an interference with the right to freedom of expression (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Lešník v. Slovakia, no. 35640/97, § 63, ECHR 2003-IVl and Karsai v. Hungary, no. 5380/07, § 36, 1 December 2009). Thus the Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35; and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI).117. Finally, the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian, cited above, § 60). The Court would, however, observe 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.
More from the Daily Telegraph here and the Guardian here. Good discussion here by Hugh Tomlinson at Inform’s Blog. Link to the webcast of the hearing, January 11, 2011.
Read the entire ruling here.