Formula One chief Max Mosley has launched an audacious to bid re-write English privacy law and create what critics have called a ‘gagging order’against the press.
Mosley, who won a high-profile privacy battle against the News of the World in July in the High Court, is applying to the European Court of Human Rights in Strasbourg for a change in the law that would make it compulsory for newspapers to inform people before they publish private information about them.
Leading media lawyers and industry figures have condemned the proposals as unfair and a threat to press freedom.
Currently, newspapers often keep stories secret to avoid getting an interim injunction from the subject of the claims, postponing publication.
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Mosley is arguing that English law is in breach of Article 8 of the Human Rights Act, the right to privacy, by not requiring editors to inform people that their private lives are being written about.
If Mosley is successful, this section of English law, which predates the Human Rights Act 1998, would be turned on its head.
A statement from Mosley’s legal team said that his right to privacy had been compromised as soon as the paper published its salacious claims that he enjoyed a Nazi-themed sex orgy in a west London flat. Mr Justice Eady rejected the paper’s claim that the incident had a Nazi theme and ordered that it pay an unprecedented £60,000 in damages.
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The statement said: ‘Although this is the highest sum ever achieved in a claim for an invasion of privacy… The only effective remedy would have been to prevent the publication in the first place by means of an injunction.
‘But because he did not know about the article before hand, the opportunity of an injunction was not open to him.”
Mosley’s team argues that the law change would not affect anyone’s freedom of expression, as any claimant would have to ask the courts for an injunction which, they say, ‘will always be refused if there is a strong and legitimate interest in publication”.
But Caroline Kean, partner at media law firm Wiggin, said Mosley’s European challenge showed a ‘very naïve understanding of the way the UK courts work”.
‘The procedure that enables the courts to grant an injunction is something where courts make a snap decision based on the evidence in front of them and primarily is aimed at preserving the status quo while the parties have a longer period in which to put more detailed cases in front of the court.
‘Contrary to what he’s saying the courts will nearly always grant an interim injunction…It amounts to a doctrine of prior restraint that is anathema to our court process.
‘What is needed is that people take heed of what is in the public interest. And editors must be free to stand and fall by their own judgement
Director of the Society of Editors Bob Satchwell said: “This suggestion of prior restraint is outrageous and would be deeply resisted by the media and by lots of other people.
“It would be a very serious backward step if we were to get that kind of law, which exists in other parts of Europe, in this country.
“Mr Mosley comments that it is wrong that a tabloid editor can destroy a family and wreck a life when he doesn’t seem to understand that perhaps his own admitted adultery over many years was the cause of his domestic problems rather than the publication.”
Media solicitor Brid Jordan, from Reynolds Porter Chamberlain, said: “Any attempt to re-cast the law based on the particular facts of the Mosley case would be a worrying development for media law and Editors”.
“There is a real danger that it would tip the scales against the press and would have a chilling effect on investigative journalism in this jurisdiction.”
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