The current privacy regime is a “negation of the rule of law” and is weighted heavily in favour of the media – according to former Formula One boss Max Mosley.
This was why he wanted the media to be under a legal obligation to notify individuals if they intended to run stories which would invade their privacy, he told a debate last night called ‘Injunctions are a necessary evil”
Mosley said he could not see any problems with gagging injunctions and said judges who faced applications for such orders had to bring an “intense focus” on the balance between the right to privacy and the public interest in publishing material.
While Mosley won record damages of £60,000 in his civil privacy claim against the News of the World in 2008 after it published a story about his sex life, the legal costs left him £30,000 out of pocket and with his privacy irreparably damaged, he told the Index on Censorship debate.
“The law is actually weighted heavily in favour of the media because of the Human Rights Act Section 12,” he said, because claimants seeking injunctions had to demonstrate that they were likely to win the case.
“I want prior notification because if you don’t know, you can’t ask for an injunction … The first I knew of the story [in 2008] was when somebody rang me and said ‘have you seen News of the World’?
“If I had known about it I would have asked the judge for an injunction and almost certainly got it.”
England’s privacy regime was “a negation of the rule of law”, as without prior notification there was no proper remedy to a breach of privacy, he said, adding: “It’s absolutely extraordinary but it’s true”.
Mosley took this argument to the European Court of Human Rights in Strasbourg but his claim was rejected by its Fourth Section Chamber in May.
He has since lodged an application for permission to appeal to the Court’s Grand Chamber.
‘Parliament should bring in privacy law’
Hugh Tomlinson QC, who has acted for a number of high profile claimants in recent privacy injunction cases, including footballer Ryan Giggs, supported Mosley’s view.
“Parliament should be intervening and bringing in a privacy law,” he said.
“The press have talked about how it’s judge-made law; what they don’t mention is that they have been campaigning hard for over 50 years to prevent Parliament from bringing in a privacy law because they rather like the idea of getting away with it with a bit more uncertainty.”
A statutory law of privacy would not be significantly different from present privacy law, Mr Tomlinson said, adding: “But what would be absolutely crucially important is that it would have a democratic legitimacy; Parliamentarians would have considered it; they would have thought it through; they would have voted on it; and these issues would have been argued out.”
Suzanne Moore, a regular columnist for the Daily Mail and the Guardian, said she did not wish to do away with injunctions altogether but drew attention to the way in which the “notion of privacy has changed between generations” and highlighted the difficulties of regulating the dissemination of material online.
“People do not respect this law. They don’t think Ryan Giggs should get away with it,” she said.
‘I would rather have a feral press than a supine press’
Solicitor-advocate David Price QC, whose clients include the reality television star Imogen Thomas said he favoured a disobedient press at the cost of privacy intrusion.
“I would rather have a feral press, with a disrespect for authority, than a supine press”, he said, adding that if Britain moved to a culture of deference it would do so “at our peril”.
He also drew attention to the difficulties of enforcing injunctions, saying: “We have the ridiculous scenario here where my client cannot refer to the person who is suing her, yet in the promotional material for this particular event we have Hugh Tomlinson described as Ryan Giggs’ lawyer. We get into all these absurd circumstances.”
The audience at the debate included Dame Ann Leslie, a foreign correspondent for more than 50 years, who rejected the idea that the press should be more heavily regulated: “I have worked in over 70 countries. I have seen what happens when the press is being controlled, even if it is not controlled by law, because the consequences of offending not just the government, but powerful and rich people, are so appalling,” she said.
The debate was held to mark the launch of the latest issue of the Index on Censorship quarterly magazine “Privacy is dead! Long live privacy”, which includes an interview with Sir David Eady, who sits in the High Court as Mr Justice Eady.