On Monday 29th September, on behalf of Mr Mosley, we issued an application in the European Court of Human Rights in Strasbourg. The application challenges the UK legal and regulatory system with regard to the law of privacy.

The starting point for this application is that Article 8 of the European Convention on Human Rights provides those in the UK with a right to respect for their privacy. It has already been established in the High Court that Mr Mosley was the subject of an illegal and devastating invasion of his private life by the News of the World.

As soon as the News of the World published their article and video footage, his right to respect for his privacy was lost. Mr Mosley knew nothing of the article before publication, the first he knew of it was on the same Sunday that millions of people were reading the article and watching the footage on the website.

Following the publication that Sunday, the only legal remedy available to Mr Mosley in the UK was to bring a claim for damages i.e. financial compensation. He succeeded in this claim and was awarded £60,000 plus his costs. Although this is the highest sum ever achieved in a claim for an invasion of privacy, it is not an effective remedy. The only effective remedy would have been to prevent the publication in the first place by means of an injunction; but because he did not know about the article beforehand, the opportunity of an injunction was not open to him.

In the High Court trial Colin Myler (the editor of the News of the World) admitted that the main reason why he did not notify Mr Mosley before deciding to publish this private material was that he knew Mr Mosley would seek an injunction. Mr Myler was quite safe making this admission in Court because in the UK there is no legal or regulatory obligation upon newspaper editors to notify those whose private lives they intend to expose.

The current position in the UK is that, although we all have a right to privacy, it is entirely up to the editor of a newspaper whether or not we are able to exercise that right in any effective or meaningful way. The editor of a newspaper, acting alone, can take a decision to publish material which may ruin a life or destroy a family, safe in the knowledge that even if publication is later held to be unlawful, there will be no significant consequences for him or his employers.

Indeed, as things stand, the editor knows there will probably be no consequences at all. As Mr Justice Eady observed in his judgment, the UK media is well aware that most people would not have taken legal action had they been in Mr Mosley’s shoes. Bringing a privacy claim for damages in the High Court is extremely costly and puts the very information the claimant wishes to keep private back in the public domain. But this is all that is open to a UK claimant in Mr Mosley’s position. Furthermore, because of the greater chance of an injunction, a newspaper editor will be even less likely to notify an individual with a very strong privacy claim (perhaps concerning particularly intrusive material) because this individual will almost certainly not sue once the material has been published.

Mr Mosley has retained the same legal team as were instructed in the claim in the High Court, including junior Counsel David Sherborne who, together with David Pannick QC of Blackstone Chambers, will argue in Strasbourg that without a legal or regulatory duty upon newspapers to notify an individual before the publication of private information about them, the UK has no real or effective protection in place for the right of privacy, something which it is obliged to do under the Human Rights Act. Whilst we all have a theoretical right to privacy this right can be and is violated before we can do anything about it. Mr Mosley’s experience is testament to this.

By this claim Mr Mosley is not seeking any further damages; the £60,000 awarded in the High Court has in any event been donated to charity. If the application is successful, and effective measures are implemented as a result, everyone in the UK will equally share in the right to have an editor’s decision to publish reviewed by a judge (if the individual so wishes) before irreparable damage can be done.

It should be reiterated that in notifying an individual before publishing private material the editor is not in any way sacrificing freedom of expression; he is merely affording that individual an opportunity to protect his or her rights. An injunction will always be refused if there is a strong and legitimate public interest in publication, in which case the editor can continue to publish and recover the newspaper’s legal costs from the applicant. The ruling sought in Strasbourg will thus have no "chilling effect" whatever on investigative journalism where the exposure of private material has a legitimate
purpose or is genuinely in the public interest.

Dominic Crossley
Steeles (Law) LLP