Newspapers could fold and investigative journalism be put in peril if Max Mosley wins his European Court bid to strengthen British privacy laws.
This is the view of leading media lawyer Caroline Kean, of law firm Wiggin, who has represented many of the UK’s leading publishers.
Next Tuesday, the European Court of Human Rights will hear a challenge from Mosley over his 2008 High Court privacy victory against the News of the World.
Mosley won £60,000 in damages after the NoW published details of his sex life. Next week, his lawyers will argue UK law needs to be changed so in cases such as his individuals will have the right to argue their case before a judge in advance of publication.
Kean told Press Gazette: “This is totally unrealistic and will put an enormous burden on the mediaâ€¦There will be a radically different press if he is successful with a lot of the colour taken away.
“We would see papers folding because they can’t afford the legal costs. I hate to say it but it would imperil investigative journalism.”
Using the example of the Telegraph’s investigation into MPs’ expenses in 2009, which involved the use of private information, Kean said that under the Mosley system: “Each MP would now have an individual hearing and right to appeal. You can’t underestimate the amount of time and money that would waste.”
Expressing concern that the European Court won’t appreciate the nature of The British Press, she said: “I hope he [Mosley] won’t be successful but it’s very difficult to judge what will happen because it is common knowledge that the way our media reports is completely different to the rest of Europe concerning privacy.”
Kean said if the European Court sides with Mosley then the UK Government will need to frame new legislation. She said: “It’s highly unlikely the government will make it a criminal offence not to notify so you’ll only get higher damages.”
Since Mosley’s initial application to the European Court in September 2008, his legal team has already made a number of lengthy written submissions.
According to Mosley’s representatives, the UK is failing its obligation to correctly apply Article 8 of the European Convention on Human Rights and protect privacy.
Article 8 states: “Everyone has the right to respect for his private and family life, his home and his correspondence”.
On Tuesday Mosley’s barrister, Lord Pannick QC, will make a short speech about his client’s case. James Eadie QC, for the UK Government, will also make an address to the court outlining why the UK opposes any change.
The European Court will also consider a number of written arguments submitted by media organisations. These include the Media Legal Defence Initiative represented by Geoffrey Robinson QC, the Media Lawyers Association represented by Heather Rodgers QC and the Guardian News and Media represented by Lord Lester QC.
Mosley’s lawyer Dominic Crossley told Press Gazette: “Proper investigative journalism should not be affected, unlawful sex exposÃ©s should beâ€¦There needs to be a proper practical remedy for privacy rights that works.
“This is particularly needed in the UK where tabloid intrusions into sex lives are more severe and extensive than anywhere else in Europe.
“At the moment the editor/journalist with an unlawful sex exposÃ© can simply circumvent the individual’s only chance to protect his or her privacy by concealing the intention to publish. This should not continue.
“No court can remove the information from the public mind once it has been published. The damage is done and it is permanent.”
After next Tuesday’s hearing it is expected to be some months before the European Court publishes its decision.