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The Globe and Mail

Ex-Formula One chief loses newspaper privacy case

Max Mosley looks on in the paddock prior to the Monaco Formula One Grand Prix at the Monte Carlo Circuit on May 28, 2006, in Monte Carlo, Monaco.

Vladimir Rys/2006 Getty Images

Max Mosley, the former head of Formula One, has lost a high profile case at the European Court of Human Rights that would have required newspapers to warn people in advance before publishing details of their private lives.

Mr. Mosley, who won an earlier landmark privacy case in the English courts against the News of the World newspaper, said the UK failed to impose a legal duty on newspapers to notify subjects in advance of a story appearing. Pre-notification would allow subjects to then obtain a court injunction preventing publication, he argued.

However, the ECHR in Strasbourg ruled unanimously on Tuesday that there had been no violation of the European Convention on Human Rights, and that to introduce a pre-notification requirement would have a "chilling effect" on journalism.

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Three years ago, when Mr. Mosley was about to step down as the head of the FIA, the regulating body of Formula One, the News of the World ran a story under the headline "F1 boss has sick Nazi orgy with five hookers".

He later sued the newspaper in the High Court claiming damages for breach of confidence and invasion of privacy and won £60,000 ($98,000 U.S.) in damages.

Mr. Justice Eady, who heard the case, ruled that there was no public interest in running the story as the images did not carry any Nazi connotations. He ruled the case breached Mr. Mosley's right to privacy.

Mr. Mosley took his fight to Europe claiming he remained a victim under the European Convention on Human Rights, which under Article 8 allows the right to a private life.

He said there was an absence of a legal duty on the tabloid to notify him before publication allowing him to obtain an injunction. Mr. Mosley argued that the damages awarded by the courts were unable to restore his privacy to him after millions of people had seen the embarrassing material in which he had featured.

However, the ECHR ruled that although punitive fines and criminal sanctions could be effective in encouraging pre-notification, "that would have a chilling effect on journalism, even political and investigative reporting, both of which attracted a high level of protection under the convention."

The ECHR concluded that although dissemination of information about those in the public eye had become "a highly lucrative commodity" and was "generally for the purposes of entertainment rather than education", it was protected by article 10 of the convention, which protects freedom of expression.

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Amber Melville-Brown, who specializes in media and reputation management at UK law firm Withers, said she hoped the media would act responsibly in publishing stories of public interest rather than invading people's private lives:

She said: "The decision from Strasbourg will be applauded for its good sense and vital protection of free speech. This is a success for the media, but it will be a success for society as a whole if the media will show equal measures of good sense in not abusing the trust that the European Court has placed in it to act responsibly.

"It is without doubt that free speech is an essential commodity for a thriving democracy. But free speech should not be used as a shield to protect the wilder excesses of Fleet Street".

Max Mosley said in a statement through his lawyers Collyer Bristow that he was disappointed and he would ask for his case to be referred to the court's Grand Chamber.

He said: "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."

Mr. Mosley said that in a small minority of cases, the subject of an article knows nothing about it until the story is out. "That leaves the victim with no remedy. The private information will never again be private and if he sues and wins, the damages he recovers, plus the costs paid by the newspaper, will be less than the bill from his lawyers." he said.

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