Mosley seeks referral to Grand Chamber

For this Kat, it feels just like another day, another privacy issue before the Courts. Yesterday Max Mosley's solicitors, Collyer Bristow, announced that Mr Mosley has made a request under Article 43 of the European Convention on Human Rights and Rule 73 of the Rules of the Court for his case to be referred to the Grand Chamber of the European Court of Human Rights. As will be recalled, last month the Fourth Chamber refused to his arguments that the UK government was obligated to implement a pre-notification requirement in privacy cases. See this Kat's earlier post here.

In written submissions, the esteemed Lord Pannick (at [9]) on behalf of Mr Mosley contends that a serious issue of general importance is whether the Grand Chamber should accept that:

'in cases where a newspaper, or other publisher, intends to disclose “intimate or sexual details of private life” (the phrase used by the Fourth Section at paragraph 125) the newspaper or other publisher should be required to give advance notice of the publication so that the individual concerned can seek an injunction from the court to prevent publication in breach of Article 8'.

One of the difficulties faced by Mr Mosley before the Fourth Chamber was its concern that he was not limiting the pre-notification requirement to 'intimate or sexual details of private life' (at [125]) and that accordingly a general obligation to give advance notification might inhibit investigative journalism. Lord Pannick confirms (at [10]) that Mr Mosley is 'entirely content to confirm that his argument is limited to such cases'.

Pre-notfication in such cases was an issue of very considerable general importance in the UK, as

'certain sections of the press, such as The News of the World, trade in the disclosure of intimate or sexual secrets of people's private lives' (at [12]).

In its press release, Collyer Bristow states that:

'Privacy has been the subject of considerable public and media debate in the last month and a ruling from the Grand Chamber of the Court is needed upon this important issue to close a clear gap in UK law'.

The next stage is for the request to be examined by five judges of the Grand Chamber, a process which can take up to 6 months.

The IPKat admires Mr Mosley for following through with his harsh criticism of the decision of the Fourth Chamber. However, he is not so sure that a limitation of the pre-notification obligation to sexual cases will be enough to secure the result which Mr Mosley so badly wants.

Merpel is not one for waiting, but she notes that the decision could be a very good or a very bad Christmas present for Mr Mosley.

Super Injunctions: the IPKat reveals all ...

It is true to say that UK privacy laws have been subjected to a very public outing of late. Indeed, they have very rarely been far from the UK headlines in recent weeks.

Most notably there has been the speculation and furore on Twitter and the rest of the Internet as to the identity of well-known individuals who had taken out injunctions to prevent details of their indiscretions being made public. In the last week alone, this has included speculation of: an alleged affair between two married stars of a popular UK television show; an alleged encounter between a married British actor and escort Helen Wood; an alleged relationship between a married Premier League footballer and former UK Big Brother housemate Imogen Thomas; the alleged visits of a married British actor to various ‘spanking establishments’ to engage in BDSM activities; the alleged sexually harassing conduct of a married British TV personality towards his female members of staff; an alleged relationship between Top Gear’s Jeremy Clarkson and socialite Jemima Khan (which has since been denied by both parties); and an alleged relationship between former England international footballer Alan Shearer and British TV personality Gabby Logan (which has since been denied by both parties).

Even as this Kat has been preparing this post over the weekend, the case concerning the alleged relationship between a married Premier League footballer and Ms Thomas has reached fever pitch. Late last week, it is this Kat's understanding that the footballer sought to orderTwitter to disclose the names of users who may have breached the terms of his privacy entitlement. Next, several celebrities, some with millions of Twitter followers, posted tweets at the weekend which either identified the footballer in connection to the relationship or heavily hinted at his involvement. Then the Sunday Herald in Scotland published a barely concealed picture of the footballer whom it claimed had obtained the injunction. The newspaper printed his face with his eyes blacked out and the word 'censored' written over the top. In an editorial, the Sunday Herald said it was "unsustainable" for newspapers not to be able to print information which is available on the internet.

Against this frenzy, it is almost prophetic then that on Friday the Committee for Super Injunctions should publish its report Super Injunctions, Anonymised Injunctions and Open Justice. The Committee was set up in April 2010 in order to examine well publicised issues of concern to Parliament, the judiciary, the media, and the wider public, following the Trafigura (RJW & SJW v The Guardian newspaper & Person or Persons Unknown) and John Terry cases (Terry v Persons Unknown [2010] EWHC 119). These concerns centred round the perceived growth in the use and application of super-injunctions and the increasing frequency with which proceedings were being anonymised. The Committee was composed of many pre-eminent figures in media law: Chair Lord Neuberger of Abbotsbury (Master of the Rolls and Head of Civil Justice), Desmond Browne QC (5 Raymond Buildings), Rod Christie-Miller (Schillings), Michelle Dyson (Ministry of Justice), Lord Justice Moore-Bick (Deputy Head of Civil Justice), Marcus Partington (Trinity Mirror Plc), Alasdair Pepper (Carter-Ruck), Gillian Phillips (The Guardian), John Sorabji (Barrister) and Mr Justice Michael Tugendhat. Significantly, the Committee did not consider issues of substantive law: as Lord Neuberger stated in the Forward, this would have been ‘inappropriate’. However, the Committee did comprehensively consider the nature of privacy injunctions, procedural issues and data collection.

For those new to the terminology, the Committee defines a super injunction as an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings. Further, an anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

In recent times, there has been considerable speculation as to how many super injunctions have actually been granted. Accordingly, this Kat was interested to learn that since the Terry case in January 2010, as far as the Committee was aware, only two known super injunctions have been granted to protect information said to be private or confidential. They were: Ntuli v Donald [2010] EWCA Civ 1276 (set aside on appeal) and DFT v TFD [2010] EWHC 2335 (QB) (granted for seven days for anti-tipping-off reasons). As far as the Committee was aware, applicants now rarely apply for such orders and it is even rarer for them to be granted on anything other than an anti-tipping-off, short-term, basis.

The Committee has made several important recommendations which restate well-established principles. These include:

* As they incorporate derogations from the principle of open justice, super-injunctions and anonymised injunctions, the Committee recommended that they could only be granted when they are strictly necessary. They could not be granted so as to become in practice permanent and so should be kept under review by the court.

* In relation to fast-track appeals, the Committee recommended that there was no justification for introducing a fast-track appeals process or a compulsory appeal process for super-injunctions or anonymised injunctions. This was on the basis that it was already possible to seek expedition of appeals from such orders.

* As for the use of specialist judges to hear applications for interim non-disclosure orders (including super-injunctions and anonymised injunctions), the Committee recommended that this would be neither justifiable nor practicable.

* A longstanding privilege of Parliament is the freedom of speech and debate. Any attempt by the courts to go beyond that privilege enshrined in Article 9 of the Bill of Rights 1689 would be unconstitutional. It follows that no super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings.

There are, however, a number of proposed changes to the current procedures. These include:

* Practice Guidance should be issued, setting out the procedure to be followed when applying for interim injunctions, with the aim of protecting information said to be private or confidential pending trial. These interim injunctions should in future be referred to as ‘interim non-disclosure orders’. A Draft Guidance is provided in Annex A(1) and (2) to the report.

* The Practice Guidance should be accompanied by a Model Order. A Draft Model Order is provided in Annex B to the report.

* The Ministry of Justice’s Chief Statistician should, with Her Majesty’s Courts and Tribunals Service (HMCTS), consider introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.

* Non-parties should be given advance notice of the application hearing. First, the applicant must give the non-party an ‘Explanatory Note’ (if appropriate, this may be anonymised). A Draft Explanatory Note is provided in Annex A(3) to the report. If the non-party gives an irrevocable undertaking to the court, the applicant must provide that non-party with the hearing papers prior to the hearing. A draft undertaking is provided in Annex A(2) (under Clause 13). This is the most substantial recommendation by the Committee and one which the media has been arguing for many years.

The IPKat thinks that, although this is a thorough and well-thought-out Report, the debate is far from over. Those in favour of privacy will be concerned about the increased costs and delays in the proposal to serve explanatory notes and hearing papers on non-parties as well as the general dilution of their Article 8 right to respect for their private life. Those in favour of free speech will be concerned that the recommendations do not go far enough. The Report did not consider the impact of social media, which in light of events concerning the footballer and his alleged relationship with Ms Thomas is another important element to be considered. Obviously the Court cannot stand on the sidelines while its orders are blatantly disobeyed.

Merpel would like to take this opportunity to make clear that she is not involved in any super injunctions or anonymised injunctions.

Mosley goes down in Strasbourg: no pre-notification requirement in privacy cases

This Kat has spent the morning reading today's decision in the Fourth Chamber of the European Court of Human rights in Mosley v United Kingdom.

For those unfamiliar with this case, the former President of Formula One motor racing, Mr Max Mosley, commenced proceedings in 2008 against The News of the World newspaper after it published numerous articles and videos revealing his extra-marital sex life. The article complained of was published on the front page on 30 March 2008 with the title of ‘F1 boss has sick Nazi orgy with 5 hookers’ and with the opening sentence of ‘Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert’. Several pages inside the print edition were also devoted to the story and included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities. An edited extract of the video and the still photographs were also published on The News of the World website. The print edition also invited readers to view the video online.

In the UK High Court, Mr Justice Eady concluded that the articles and images constituted a breach of Mr Mosley’s right to privacy: Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008). Eady J declined to award exemplary damages and limited the damages available to a compensatory award (at [235]). Mr Mosley was awarded £60,000 in damages (at [236]), currently the highest award of damages in a misuse of privacy case.

Mr Mosley appealed to the European Court of Human Rights. The main issue was whether the United Kingdom, in order to protect Mr Mosley’s right to respect for his private life under Article 8, had a positive obligation to impose a legal duty on The News of the World to notify Mr Mosley prior to the publication of information which intruded upon his private life so that he may have the opportunity to obtain an injunction. Several media organisations and trade associations intervened in the case (including Guardian News & Media Ltd, The Media Lawyers’ Association, The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers’ Association, European Publishers’ Council, and The Mass Media Defence Centre). In particular, they argued that (a) prior notification was inconsistent with their right to freedom of expression under Article 10; (b) the State should be afforded a wide margin of appreciation; and (c) prior notification did not reflect continental legal practices or the practicalities of journalism.

The Fourth Section of the Court of Human Rights rejected Mr Mosley’s request for a legal pre-publication requirement (at [132]). In its judgment, the Court consistently emphasised the need to look beyond the facts of Mr Mosley’s case and to consider the broader impact of a pre-notification requirement. It also bore in mind the limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest. Therefore, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court was of the view that Article 8 does not require a legally binding pre-notification requirement.

In the end practical considerations prevailed. The Court noted (at [128]) that any pre-notification requirement would only be as strong as the sanctions imposed for failure to observe it. A regulatory or civil fine, unless set at a punitive level, would be unlikely to deter newspapers and would run the risk of being incompatible with Article 10.

The conduct of The News of the World, however, did come in for some ‘severe criticism’ from the Court (at [131]). In particular, the Court made reference to how the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Further, the Court could see no possible additional contribution made by the video footage, which appeared to have been included merely to titillate the public and increase the embarrassment of Mr Mosley.

Merpel admires Mr Mosley’s endurance in this matter: whilst most would shy away from further litigation, Mr Mosley has declared his intention to fight on. His solicitors (Collyer Bristow) have released a press release which quotes Mr Mosley as stating:

“I am disappointed at today’s judgment, because I think that there is widespread recognition that privacy is fundamental to the way we live our lives. The potential for intrusion into our privacy is enormous and we need proper protection.

My current intention is to continue with my application by way a request to the Grand Chamber and I will be discussing this with my lawyers over the next few days.”

Earlier IPKat posts on the Mosley case here, here, here, here , here and here