Mosley v United Kingdom: Strasbourg Refuses a Duty to Warn Before Publication

In 2011 the European Court of Human Rights decided Max Mosley’s case against the United Kingdom and closed the legal fight over a News of the World privacy story. Mosley, former president of the Fédération Internationale de l’Automobile (FIA), had already won in the English courts. Those courts found that the paper had published details and images of a private sadomasochistic gathering and had falsely branded it Nazi roleplay. They held that the News of the World had breached confidence and privacy, and they awarded £60,000. Mosley did not stop there. He went to Strasbourg and argued that UK law should have forced the paper to warn him before publication, so he could seek an interim injunction and stop the story. The Court refused. It held that UK law did not have to impose a general duty of prior notice.

The fight was privacy against press freedom. Mosley wanted a prior-disclosure rule: at least two days’ warning before a story about a public figure’s private misbehaviour, so a judge would decide whether it ran, instead of leaving that call to an editor. He argued that the United Kingdom had breached Articles 8 and 13 of the European Convention on Human Rights. The state has to protect private life, he said, and a remedy that arrives after publication, especially money, cannot put a secret back. Once the images are out, no sum returns them to privacy. He also argued that the High Court’s damages were not enough for the harm already done.

News organisations treated the claim as a threat to press freedom. John Kampfner, chief executive of Index on Censorship, said a mandatory warning would choke investigative reporting, because editors might drop a story rather than risk an injunction. Media Legal Defence Initiative, the European Publishers Council, and other press and free-expression groups filed arguments against him. In January 2011 a Chamber of the Court heard the case. Lord Pannick QC and David Sherborne appeared for Mosley. James Eadie QC and A. Jeeves appeared for the United Kingdom.

On 10 May 2011 the Court gave judgment. The judges accepted that the News of the World’s reporting of Mosley’s private life was a flagrant and unjustified invasion, and they separated reporting of facts that can contribute to public debate from tawdry allegations about private life. They said the paper’s conduct was open to severe criticism, and they noted a Select Committee recommendation that the Editors’ Code normally require journalists to notify the subject before publication, with a public-interest exception. Even so, the Court held that the protections already in place were enough: a complaint to the Press Complaints Commission, and civil damages. The United Kingdom was not required to legislate a general pre-publication duty. Article 8 does not require Council of Europe states to impose that duty for private-life stories. Whether to adopt one sits inside each state’s margin of appreciation. The Court found for the United Kingdom. Domestic law did not breach the Convention, and the High Court damages were an adequate remedy.

The papers did not speak with one voice. The Daily Telegraph called the result a significant victory for free speech. Some commentary set the case next to the British wave of superinjunctions. Both touch privacy and the press. They are not the same legal device. Other critics said the tabloids quote-picked the judgment, playing down the Court’s rebuke of the News of the World and Mosley’s status as the person whose privacy had been invaded.

For readers who follow BDSM, the case matters because it treats consensual adult SM as private life. The Court accepted that the gathering was a private session stuck with a false label. Strasbourg still held that a preventive duty to warn is not something the European Convention forces on a state, set against the structure of press freedom. Mosley got his status as the injured party affirmed, and he got the tabloid’s conduct condemned. He did not get a UK law that makes prior notice mandatory. That is where his European bid for a warning system stopped. Privacy law can treat the session as private. Once a paper has spread it, courts have been more willing to talk about damages than to build a system of injunctions before publication.