Publish and be damned to go ? (50)

Solicitor Mark Stephens has warned that the fact the European Court in Strasbourg court had fast-tracked Max Mosley's application seeking a ruling - forcing UK journalists to notify individuals in advance if they are planning to publish private information about them - could mean its judges are set to rule in his favour.

Eight media and free speech organisations have been given permission by the Court to intervene in the case.

The organisations, being represented by solicitor Mark Stephens of law firm Finers Stephens Innocent and Geoffrey Robertson QC are: the Media Legal Defence Initiative (MLDI), Index on Censorship, the International Media Lawyers Association, the European Publishers' Council, the Mass Media Defence Centre, the Romanian Helsinki Committee, the Bulgarian Access to Information Programme Foundation, and Global Witness

Stephens said: “It is a frightening prospect for lovers of free speech that this crucial case has been abandoned by the News of the World and will be defended only by the British Government, which has no concept of what free speech means.

"It is very worrying that a court which has not been favourable to free speech recently has fast tracked this particular application and this may well be an indication that the judges are preparing to mount another attack on the media.

"If they uphold Mosley's complaint, this will be further evidence of a need for a British Bill of Rights that protects our fundamental press freedoms."

Robertson said: “Mr Mosley's argument that the law should require prior notification before publication is a fundamental breach of the rule against prior restraint, first stated by Blackstone and famously embodied in the Duke of Wellington's challenge, 'publish and be damned'.

“It is a rule which has been enshrined in US law by the Pentagon Papers case and Lord Denning always insisted it should apply in libel - you cannot get a pre-publication injunction where the press is prepared to defend.

"Now, the Mosley team is attempting to persuade European Judges, who are not alert to this free speech tradition, to circumvent it by reference to Article 8 and privacy."

Practise senseless acts of beauty.

Edited 16 Feb 10, 9:49 AM by Cassius

I'm not sure what I think either although the Mosley proposal is that a court should decide what a newspaper should be allowed to publish, not that the subject of the article can have it blocked for good. The case would be argued in front of a judge by both sides. Mosley himself was quite clear about this in his recent BBC Radio 4 interview

But I think it is disingenuous and perhaps wrong for Mr Robertson to try and use the Duke of Wellington in this context. After all, wasn't his "publish and be damned" reposte made when the courtesan Harriette Wilson threatened to publish her memoirs and his letters i.e. after he was told what was going to be published about him? He was pre-warned.

Lawyers, got to love them.

As person above notes, the issue is much more limited. It's about whether the press should notify the person of intended publication so that they can go to Court to ask for order restraining publication. As Class Act says, this is partly about whether money can compensate for the public humiliation and disclosure to family.

It is also about the commercial realities of a decision to publish. If the press can publish before going to Court then it will get the certain commercial return before incurring the legal costs. As a bonus, they can publish a further story about the victim's attempt to "gag" them. If the legal hearing comes first then the press are faced with legal costs every time they want to publish but without any certainty that they will then be able to publish and make anything from it.

This side of the commercial strategy strangely never gets mentioned when the press complain that English libel laws are a gagging charter for the wealthy.

There must be a happy medium between respect for privacy and exposure of malfeasance, the protection of human rights versus the exposure of political scandals.

"We are all in the gutter, but some of us are looking up at the stars" - Oscar Wilde
"I disapprove of what you say, but I will defend to the death your right to say it." - Evelyn Beatrice Hall

Perhaps there might hypothetically be some cases where it's hard to balance freedom of speech versus right to privacy, but this is no such case. I don't think it's any more relevant than other examples that technically limit free speech, such as libel, or copyright laws. Freedom of speech has never been absolute.

If a newspaper is going to risk publishing things that it knows are damaging to a person, in order for commercial gain, then I don't feel it's unreasonable for them to take responsibility for damages if they get it wrong.

ETA: Remember, we're not talking about criminal laws here, where a certain type of speech has been banned. This is a civil issue, and it's about making up for damages that the papers cause to individuals, in the pursuit of profit.

Sign the Consenting Adult Action Network's statement

Edited 16 Feb 10, 11:34 AM by emark

“Some people never go crazy, What truly horrible lives they must live”

Yeah, but there's no money in it.

Sex sells.

I don't at all disagree with rules on only publishing what's in the public interest, but if the journos stick to that, they won't sell papers. For the media moguls, it's not just an ethical choice, it's a financial one too.

www.thedivinemissp.co.uk

Then fuck 'em. Let them get proper jobs.

“Some people never go crazy, What truly horrible lives they must live”

Very tricky one.One mans privacy is another mans whistle blowing.

For example what if MP's had publication of their expenses hushed up for privacy reasons?