Journalists do not have to pre-notify the subjects of stories, says European human rights court

The fact that the UK does not have a law forcing journalists to pre-warn the subjects of stories is not a violation of the European Convention on Human Rights (the Convention), it said, rejecting claims made by former Formula One executive Max Mosley.

The ECHR said that forcing the press to tell people before publishing stories could have had a "chilling effect" on the right to freedom of expression because it would give the subjects of stories the chance to obtain a court order that publication be stopped.

Mosley argued that publishing without warning was a violation of a person's right to a private and family life as guaranteed by the Convention. The ECHR disagreed.

"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 is of the view that [a person's right to a private life detailed in the European Convention on Human Rights] does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of ... the Convention by the absence of such a requirement in domestic law," the ECHR ruling said.

Mosley brought the case to the ECHR after arguing for a change in UK law to impose a legal duty on newspapers to tell people about stories before going to print. Newspaper bosses had said that such a move would restrict freedom of expression in the press.

Mosley won a UK High Court battle against the News of the World in 2008 when the judge ruled that the paper violated Mosley's right to privacy when it published a story and video detailing an orgy in which Mosley took part.

The paper was ordered to pay Mosley £60,000 in damages after the court said its allegation that Mosley's sex life had Nazi undertones was unproven. Mosley is the son of Oswald Mosley, the leader of the British fascists in the 1930s and 1940s.

The ECHR ruled that the compensation paid to Mosley showed there was sufficient deterrent to newspapers to avoid publishing stories that violated a person's right to privacy and that existing legal tools offered enough protection to an individual seeking to protect their privacy.

"The newspaper was required to pay [£60,000] damages, approximately [£420,000] in respect of [Mosley's] costs and an unspecified sum in respect of its own legal costs in defending the claim. The Court is of the view that such awards can reasonably be expected to have a salutary effect on journalistic practices," the ECHR ruling said.

"Further, if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the material. Again, the Court notes that the availability of civil proceedings and interim injunctions is fully in line with the provisions of the Parliamentary Assembly’s 1998 resolution [which sets out specific guidelines on the necessary content of national law to allow people to protect their rights of privacy and says journalists can be held responsible for violating people's privacy]. Further protection for individuals is provided by the Data Protection Act 1998, which sets out the right to have unlawfully collected or inaccurate data destroyed or rectified," the ECHR said.

The ECHR ruling offered guidance as to what newspapers should consider before publishing information that violates a person's right to privacy.

"The pre-eminent role of the press in a democracy and its duty to act as a 'public watchdog' are important considerations in favour of a narrow construction of any limitations on freedom of expression," the ECHR ruling said. "However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life."

"Such reporting does not attract the robust protection of [freedom of expression detailed under the European Convention on Human Rights] afforded to the press," the ECHR ruling said.

"The Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it," the ECHR said.

If Mosley had been successful the UK may have been forced to make changes to how the Human Rights Act implemented the Convention, EU guidance on responding to ECHR rulings says.

"Depending on the circumstances, the execution of the judgment may also require the respondent state to take individual measures in favour of the applicant, such as the re-opening of unfair proceedings, the destruction of information gathered in breach of the right to privacy or the revocation of a deportation order issued despite the risk of inhumane treatment in the country of destination," an introduction into the Execution of Judgments of the European Court of Human Rights, published by the Council of Europe, says.

"It may also require general measures – such as a review of legislation, rules and regulations or judicial practice - to prevent new, similar violations," the publication says.

Mosley has campaigned for stronger privacy laws and in recent years celebrities have made greater use of court injunctions to prevent publication of information they argue is protected by their rights to privacy.

The difficulty of maintaining the secrecy ordered by such injunctions came into focus this weekend when claims about the identities of some injunction subjects were made by an anonymous Twitter user. On Sunday private revelations about celebrities appeared on the social-networking site that claimed to break UK court orders banning their publication.

Some newspapers reported on Monday that prominent charity fundraiser and human rights campaigner Jemima Khan was named by the anonymous Twitter user.

"Rumour that I have a super injunction preventing publication of 'intimate' photos of me and Jeremy Clarkson. NOT TRUE!" Khan said on her Twitter page.

A report about so called "super-injunctions" is expected to be published later this month by a committee chaired by the Master of the Rolls.

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