New paper: Prior Notification in Privacy Cases - A Reply to Professor Phillipson

I have a new working paper out (title as above) in the LSE Law, Society and Economy Working Paper Series. As implied by the title, it is a response to Gavin Phillipson's intelligent and persuasive discussion published in the first volume of the Journal of Media Law on the prior notification obligation for which Max Mosley is currently petitioning the European Court of Human Rights (see here, here and here on the Inforrm blog).

The paper can be downloaded here or here. An improved version will be published later this month as (2010) Journal of Media Law, 2, 49-65 [update - the JML paper is now out. For those at LSE, it can be accessed on the Ingenta database].

An abstract for the working paper is as follows:

In a recent edition of the Journal of Media Law, Professor Gavin Phillipson considered whether the United Kingdom 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 United Kingdom in breach of its obligations. Nevertheless, it closes with reflections on the desirability of prior notification, and the availability of other means to encourage the practice.