Why Max's trip to Strasbourg could kill ambush journalism
10 November 2008
Max Mosley is taking his fight against the News of the World to the European Court where he will ask Strasbourg’s judges to rule that the media have to give notice to the target of a story about their private life before it is published. If he succeeds it will have ramifications for all journalism – not just tabloid spanking scoops.
At the moment there is no obligation on the press to give the target of a story a heads-up prior to publication. Sometimes the press will telephone; perhaps they want a quote, or are unsure of a particular fact and want to be able to later defend themselves by claiming that their journalism was “responsible” (which usually means putting the story to the target in advance). However, when a story involves publication of private or confidential information which the press are pretty sure is true, these days they are reluctant to give advance notice because Courts are increasingly prepared to grant injunctions to prevent publication of confidential or private material where the public interest in protecting that information outweighs the public interest in exposing it. However “public interest” doesn’t mean what the public are interested in (for example, how much a CEO’s home extension cost) but information that advances a public debate of genuine importance (CEO lying about his stock options perhaps). In fact, in the Mosley case, the News of the World’s Editor told the Judge that they didn’t put the story to Mr Mosley precisely because they knew he could have got an injunction to halt the presses.
This will all change if Mr Mosley gets his way in Strasbourg. The UK press could be required to give advance notice to any person whose private or confidential information they plan to publish. If the press don’t give notice and also fail to convince a Court that they published in the public interest then the sanction could well be increased compensation - perhaps a percentage of the profit on that edition of the ‘paper - and a full legal costs indemnity. Few editors will want to be responsible for those kinds of payouts.
This would not just bite on soapstar kiss and tells because the European Court would be unlikely to distinguish between “natural persons” and “corporate persons” and could also extend to corporate confidences as well as bedroom secrets. This would include leaked confidential business plans, board minutes etc so if Mr Mosley succeeds in Europe, it could be a victory for MegaCorp Inc as well as Joe Soapstar in seeking to protect their legitimate private and confidential information.
For press enquiries please contact:
Christopher Mills
christopher.mills@schillings.co.uk
+ 44 (0)20 7034 9000
First published on Gorkana as part of Schillings' regular contribution to their site.
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