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Double privacy setbacks for prior notification supporters

Ferdinand's plea for prior notification labelled 'red herring'

3 October 2011

Former Formula 1 boss Max Mosley and footballer Rio Ferdinand saw their privacy claims rejected by courts in Europe and the UK last week.

The Grand Chamber of the European Court of Human Rights refused to hear an appeal by Mosley after his claim against the News of the World was rejected by the ECtHR (see, 6 June 2011).

Meanwhile, at the High Court, Mr Justice Nicol rejected a claim by former England football captain Rio Ferdinand that an article in the Sunday Mirror was an unjustified infringement of his right to privacy.

Mosley said he would continue his fight to improve privacy laws despite the rebuff from Strasbourg.

Tim Lowles, associate at Collyer Bristow who acted for Mosley, told Solicitors Journal the former F1 boss was among the core participants invited to inform the Leveson inquiry set up in the wake of the phone hacking scandal and would use the opportunity to call for the introduction of a pre-notification requirement in privacy cases.

“The landscape has changed since the hacking stories earlier this year and the government now has to take a position on privacy,” Lowles said.

Asked if a new culture of respect within the media would be sufficient to protect privacy rights, Lowles replied: “Any law or regulation that revolves around privacy can only work if there is a requirement of prior notification.

“Otherwise it’s up to the editor. And once the information is out there, there’s no way of bringing it back into the private sphere - prior notification is the only way.”

Rod Dadak, head of media at Lewis Silkin, said that although Mosley had lost the ECtHR battle he had won the war “as his case more than any other put privacy and the press on the map”.

Dadak said Mosley’s attempt to persuade the grand chamber to make it compulsory for prior notification by journalists of stories potentially breaching privacy was bound to fail.

“Nevertheless,” Dadak continued, “in putting the spotlight on the media, and with a welcome boost from the phone-hacking scandal, he has been hugely successful in his overall campaign. The balancing exercise is no longer a one-way trip down the road of freedom of expression.”

Like Mosley, Ferdinand emphasised that he had no prior notice of an article in The Sunday Mirror published in April 2010 under the headline “My Affair with England Captain Rio.”

Delivering judgment in Ferdinand v MGM [2011] EWHC 2454 (QB), Nicol J described this argument as a “red herring”.

“He [Ferdinand] suggested that this was only explicable on the basis that the defendant feared being subject to an interim injunction if notice had been given and this fear betrayed a lack of confidence in the reliance that they now placed on freedom of expression,” Nicol J said.

“I do not find this line of argument helpful. Partly, that is because it is entirely speculative as to why no notice was given to the claimant. More importantly, I have to decide where the balance lies between these competing rights as an objective matter.

“The arguments which the defendant now advances will either succeed or fail. The defendant’s internal assessment of their merits at some earlier stage is neither here nor there.”

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