Prior Notification in Privacy Cases: A Reply to Professor Phillipson

Abstract

In a recent edition of this journal, Professor Gavin Phillipson considered whether the UK must impose a prior notification obligation on the media in respect of stories that concern the private conduct of individuals. Such a notification requirement would allow time for the subjects of such stories to seek interim relief to prevent publication. Max Mosley has asked the European Court of Human Rights to oblige the UK to introduce such a rule. Professor Phillipson concluded that Mosley should win his case. This paper proceeds, first, by questioning the fundamental premise of the Phillipson / Mosley argument: that damages are inadequate to compensate harms done through publication of private information. Secondly, it considers the practical ramifications of the imposition of a prior notification requirement, both in terms of the ‘workability’ of a legal obligation and the impact it would have on media freedom. Thirdly, it airs the question of whether – in light of the margin of appreciation afforded to contracting states – it would be legitimate for the Strasbourg court to compel the introduction of a specific measure to assist the protection of privacy. The paper concludes that the European Court should not find the UK in breach of its obligations. Nevertheless, it closes with reflections on the desirability of prior notification, and the availability of other available means to encourage the practice.