Max Mosley: Sex, secrets and super-injunctions

10 May 11 | News and features

European Court finds against Mosley and throws responsibility back to Parliament — now MPs need to find a way to balance privacy against open justice and free expression, Geoffrey Robertson writes

Max Mosley has lost his case for requiring the UK government to impose a legal requirement on the media to notify people before it publishes embarrassing facts about their private lives, so as to enable them to obtain “super-injunctions” in secret court hearings. This is welcome, because (as Twitter has shown) such injunctions do not work in the age of the internet, and the fact they do not work only brings the law into disrepute. Of course, we do need effective remedies to deter blatant breaches of privacy. But prior restraint is not acceptable. Justice must be seen to be done, otherwise it is not “justice”.

The European Court of Human Rights based its decision on “the margin of appreciation” that is accorded to every country to solve certain problems in its own way, according to its own traditions and inclinations. The message of today’s decision is directed to the UK Parliament — “it’s over to you”. There is a duty to protect privacy, but we can do it in our own way, so long as we do not err on the one hand by suppressing information of genuine public interest, or on the other, allowing intimate facts of no value to be intrusively obtained and published for sniggering entertainment.

The real problem is first to find a sensible test to distinguish between the two, and secondly to devise a legal approach that will serve to deter abuses of privacy whilst maintaining open justice and free expression. Today’s judgment does nothing to solve the first problem, which arises because of its incoherent decision in the “Princess Caroline” case, which defined privacy in terms of “enhancing personal development” and amounted to little more than vague psycho-babble. But it did provide some helpful pointers in solving the second. Mosley was awarded £60,000 by a judge in England, and received a massive 250,000 euros in Germany, and is suing for more compensation in France and Italy. A law which allows such sums to be awarded for blatant breaches, after open court proceedings, provides an adequate remedy to victims.

Of course, Mosley’s argument is understandable. Post publication damages will not put the genie back in the bottle. The victim will never be the same again, the secret will be out, and money cannot compensate for the humiliation. True enough, but the courts cannot perform miracles. They cannot, as his judge pointed out, be like King Canute, policing the electronic waves of incoming information. Do we really want Scotland Yard to spend our tax money on a “twitter squad” arresting those who indulge in internet speculation about the going-on in secret courts?

Moreover, a law that made invasion of privacy a civil wrong (tort) with damages of up to (say) £250,000 awarded by a jury, would operate in time as an effective deterrent. Jury verdicts are publicly acceptable, whereas decisions on such subjective moral issues by judges (perceived as middle-class and male) are not. Well may judges rail against “sniggering tabloids”, as the Euro court has in its Mosley decision, but the final verdict should be left to a representative sample of readers in the jury box. Would Max have won his case before a jury? His spanking episode with five prostitutes might have struck them as morally reprehensible, or they might have thought him pretty good for his age. The point is that over time, if juries award heavy damages against tabloid intrusion, tabloids will think twice — or three times — about intruding. They will take care to ensure they have a public interest rationale before they do it again.

The tension between free speech and privacy is inevitable, and there is no ideal solution. But we must stick to our constitutional principles: justice must always be seen to be done, and remedies for human rights abuses must be workable, publicly acceptable, and should not bring the courts into disrepute. So Parliament should sweep away super-injunctions and all the Euro-nonsense that has accreted to the concept of privacy, and pass a law creating a civil wrong of publishing intimate personal details, unjustified by exposing crime or serious impropriety, protecting public health or safety, or revealing hypocrisy. Either party should be entitled to opt for trial by jury, with damages capped at £250,000.

This would provide a solution consistent with our traditions and our European obligations. No more secret courts, no more prior restraint. Let the press be free — and let it take the consequences if it abuses that freedom. In other words — those of the Duke of Wellington — “Let it publish and be damned”.

Geoffrey Robertson QC is co-author of Robertson & Nicol on Media Law (Penguin, 5th Ed.). He wrote Index on Censorship submissions to the European court in the Mosley case