The Max Mosley appeal could have a great impact on UK journalism, but not for cases like Max Mosley's.
It is, after all, not often that public figures are exposed in the tabloid press for indulging in sado-masochistic orgies. Nor are they put in a position where they are unaware of the intrusion into their private lives before the story gets out.
One of the fundamentals of journalism has always been to get the other side of the story – to front up the subject, reveal what you've got on them and see what they've got to say about it. That principle has applied to everything from major crime to sexual peccadilloes. Mosley is in effect asking for something which is already common practice in most reporting.
Perhaps it is the ease with which technology allows evidence to be gathered – concealed cameras in the Mosley case – that has tempted papers to believe that the subject is bang to right and no response is required. Or perhaps it is the knowledge that they will run screaming to the courts for an injunction when they know their privacy is about to be intruded upon in this way.
And that is what Mosley is in Europe to do – to ensure that figures in his position get advance warning by the media that this sort of material is going to be revealed.
If the appeal is successful, it may well prevent another Mosley case, but what it may also do, depending on the framing of any judgement, is impinge upon the legitimate practice of investigative journalism in the UK.
If a principle is established that the subject of a story must be given advanced notice if their privacy right might be breached, that might also apply to companies or individuals being investigated for criminal conduct.
The ease with which some parties have obtained super-injunctions for possible breach of confidence is already alarming. They hardly need this further weapon with which to avoid negative publicity.
Journalists, particularly those engaged in investigative journalism, are already caught between two competing legal principles. To establish the Reynolds defence against libel, they need to give the subject of their story right of reply to the allegations being made against them. However, where those allegations stem from confidential information that the journalist has obtained, this gives the subject of the story the opportunity to obtain an injunction, delaying or banning publication.
There is a little light at the end of the tunnel in this though. The victory of the Mirror in its appeal to the ECHR over the success fee in the case brought against them by Naomi Campbell could take the heat out of such legal actions. The high rewards available to 'no win no fee' lawyers have contributed to the proliferation of such action. The prospect of no, or much lower, success fees might just reduce the enthusiasm the legal profession has for taking on such actions.
So the European Court has given. To see how much it might take away, we must await the result of the Mosley case.
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