On balance, the Max Mosley verdict in the European Court of Human Rights yesterday is the correct one.
There is such a thing as the right to privacy and it is important that this is acknowledged in an age when the lives of celebrities and those who find themselves in the news, have become an increasingly lucrative commodity in certain sections of the press and the new electronic media.
Ultimately the former Formula One boss was right to claim that there was little public interest justification in the News of the World publishing details about his sex life, after the idea of Nazi overtones was dismissed. However, there is no neat dividing line between the right to privacy, enshrined in Article 8 of the European Convention, and the right to freedom of expression contained in Article 10. As the court recognised, the right to privacy is already protected to some extent by self-regulation and the access to civil courts to seek damages and if the media was required to give prior notice of stories, it could have a “chilling effect” on investigative journalism. (Though genuine public interest would obviate the need for notification, the size of the grey area and the fear of a fine would inhibit investigative activity, especially by small independently owned publications that could be bankrupted by such a case.)
In the same context it is disappointing that the normally liberal Press Complaints Commission has come down hard on The Daily Telegraph for the covert interviews with Liberal Democrat ministers. For example, it is very much in the public interest that Business Secretary Vince Cable should have considered himself “at war” with the Murdoch empire, given his then role in the corporation’s wish to take over BSkyB. It is unfair to suggest the newspaper was engaged in a general “fishing expedition”.
To counterbalance freedom of expression, there does need to be some explicit sanction for those seeking to protect their privacy. It is unacceptable that the rich and famous are able to obtain superinjunctions to gag the media, while the weak and vulnerable have no such protection. There is a danger of a two-tier system of justice developing, which is why the report on superinjunctions due out next month from Master of the Rolls, Lord Neuberger, should mark the beginning of cautious reform.
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