Danny Titolo is a JD candidate at Osgoode Hall Law School.
Former Formula One president, Max Mosley, recently launched a complaint attempting to strengthen privacy protections for public figures. If the legal bid were successful, it would require news organizations to notify individuals who were the subject matter of a publication. The European Court of Human Rights dismissed the complaint on the grounds that the bid potentially infringes on freedom of speech rights.
Mosley’s lawsuit was launched against The News of the World that published a story in 2008 about the former Formula One boss which stated that he had a “Nazi orgy with 5 hookers”. The story was based primarily on a video that was recorded during the event.
The main argument was that the news organization should have notified Mosley before publishing the story. A British court agreed. The publication was not justified since there was no evidence of Nazi behaviour in the video. The News of the World was ultimately fined £60,000 and ordered to pay costs. Although Mosley did not succeed in obtaining all the punitive damages he was seeking, the damages awarded are the highest for a privacy action in recent legal history.
This is not the first time a public figure has attempted to prevent a tabloid from publishing reputation-tarnishing allegations. British celebrities have gone to extreme lengths to obtain injunctions to prevent publication. Securing an injunction can cost between $30,000 and $80,000 on average and the existence of the injunction is banned from public mention. The high price tag of these injunctions, or “super-injunctions” as they are often referred to, has received a fair share of criticism suggesting that these injunctions are only obtainable by the wealthy.
Public figures that secure injunctions are not always successful in preventing potential allegations from spreading. The Internet has limited the effectiveness of these injunctions considerably. Social media networks like Twitter have often been used to circulate information regarding court ordered injunctions secured by celebrities. One user of Twitter had attracted more than 80,000 followers after “tweeting” messages regarding super-injunctions secured by several high profile athletes and actors.
Celebrities have responded by jumping onboard and using Twitter in attempts to deny allegations. Jemima Khan used her Twitter account to deny obtaining a super-injunction to prevent the release of compromising photographs. Khan stated that an injunction was never sought and that intimate photos between her and Jeremy Clarkson, star of the BBC series “Top Gear”, do not exist.
Super-injunctions have been perceived as being a potential threat to freedom of speech rights in Britain. As a result, British newspapers have been lobbying strongly against them recently. The courts are attempting to bring privacy laws up to speed with technology. If Mosley’s legal bid would pass, it would create a very unusual and contradictory situation. Newspapers would not be permitted to print potentially harmful information regarding public figures which Internet users would be permitted to freely access online. Jeremy Hunt, the British culture secretary, said, “We are in a situation where technology, and Twitter in particular, is making a mockery of the privacy laws that we have…It should be Parliament that decides where we draw the line on our privacy law.”
Mosley feels that British media laws violate human rights since they do not adequately protect individuals from intrusions into their private lives. He stated that, “My experience, and the experience of countless others, is that UK tabloid newspapers such as The News of the World will stop at nothing to deny us privacy. They trade in sex scandals using countless techniques and ‘dark arts’ in the full knowledge that what they do ruins lives. I think it is wrong that they can continue to do this with impunity.”
The court did not agree stating that there are sufficient laws in Britain to protect privacy. Furthermore, the court stated that although fines and sanctions would encourage news organizations to notify individuals, it would ultimately have a negative effect on journalism and be incompatible with freedom of expression. Mosley intends to appeal the decision to the grand chamber of the Strasbourg court.
Social media networks like Twitter and Facebook are generally not accountable for the content on their forums. However, users can be sued for content posted that potentially invades privacy. The main obstacle is jurisdiction since these social media networks are United States-based companies.
2 Responses
One of the links in the sidebar in the Jeremy Hunt articles points to an article about Twitter declaring they would release the names of Twitter users who violate super-injunctions if they were “legally required” to do so.
As you point out though, they’re US-based companies and they might interpret “legally required” to mean “legally required under US law”. Given the US’s historically strong protection of freedom on speech, I can’t see that happening.
I also feel there is a major issue with how difficult it would be to force news organizations to contact individuals who are the subject of a publication. One of the articles touched on how forcing the media to do so would have a negative impact on journalism, but didn’t really elaborate on how. Freedom of speech rights aside, I suspect one of the main reasons is practicality. Imagine how difficult it would be to contact every individual who was the subject matter of a publication. And who would have to be contacted? Would only the main individual discussed in the story have to be contacted? How about any secondary individuals mentioned? Only famous people or public figures? How famous does a person have to be in order to merit contact prior to publication? Will lay people not have this benefit?
These are just some of the issues a court will have to take into account if they decide to go down this road. Not only will enforcing such a law be difficult due to the ambiguity I just alluded to, but imagine the onslaught of litigation that will result. Most would agree that more stress is one thing the judicial system doesn’t need.
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