Sex Tape Leads to Struggle About Pre-Notification Right
The European Court of Human Rights (“ECHR”) has rendered a judgment in the Mosley vs UK case, about which we already wrote here, here and here on our MediaReport website (in Dutch). The ECHR has established that the United Kingdom has not violated the privacy rights of Mosley under Article 8 of the European Convention on Human Rights. Privacy victims do not have a right to prior notification of the articles in which they feature. In the United Kingdom Mosley had opposed the publication by the English tabloid Sunday newspaper News of the World of a video in which Mosley is shown while having sex with a number of prostitutes.
For background information see this earlier posting on MediaReport (in Dutch). After Mosley had won this case, he instituted legal proceedings against the United Kingdom before the European Court of Human Rights, because he was of the opinion that the United Kingdom should have ensured that he should have been notified prior to publication, because according to him, this was the only way to avoid the damage that he had suffered. The ECHR does not agree.
Judgment of the ECHR: Prior Inspection Would Have a Chilling Effect
Although the right to respect private life of Article 8 of the European Convention on Human Rights may also imply positive obligations for the Member States, the English legal system contains sufficient measures to protect personal privacy. In principle, damages in arrears provide sufficient satisfaction for an infringement of personal privacy as protected by Article 8 of the European Convention on Human Rights. The ECHR has furthermore explicitly pointed out that Mosley’s claim that a right to inspection prior to publication should be implemented does not only have consequences for a case like Mosley’s, which concerns a publication of a sex video by a “sensationalist” tabloid newspaper, but also for serious investigative journalism and political reports.
The ECHR has also pointed out that “any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it.” That is an additional point of concern. After all, penalties or penal sanctions may be in conflict with the freedom of expression of Article 10 of the European Convention on Human Rights, especially if it concerns a form of censorship prior to publication. This threat would have a chilling effect on political reporting and investigative journalism. The ECHR has therefore concluded that Article 8 of the European Convention on Human Rights does not require a right of inspection. Mosley’s claim has therefore been rejected.
Relevance for the Entertainment Press
The judgment also contains an interesting consideration about the entertainment press:
“The Court … recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media … The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination.”
Although at first sight this might look like bad news for the people in the Netherlands that love showbiz news, on a further reading it does not seem so bad. On the basis of the Princess Caroline of Monaco judgment, it is now often said that “non-news” about the stars (“Princess Caroline out and about in Paris”) may only be published if there are reasons of public interest. The ECHR has now confirmed that this goes too far. Such a publication may be a problem if there is no public interest and it concerns information of a personal and intimate nature, according to the ECHR. Especially the claim that it must be of an intimate nature will not apply in many cases. Here I have written an article before about the Caroline II case, a continuation of the earlier Caroline judgment, which currently lies before the ECHR. The verdict in the Caroline II case is also expected shortly. In that case more clarity will probably be provided about the boundaries for the entertainment press.
Mosley has indicated that he will appeal against the judgment to the Grand Chamber of the ECHR: “It’s not finished yet. It’s round one to the Government. I hope there is going to be a round two, and it will end up a knockout in my favour,” according to Mosley.
The Grand Chamber recently refused the appeal.