UK Newspapers Win A Big Decision At The European Court Of Human Rights

Philip M. Stone January 19, 2011 - Follow on Twitter

The European Court of Human Rights is perceived to put privacy ahead of the public’s right to know but that doesn’t mean it doesn’t want to protect freedom of expression and it has handed down a unanimous decision that for Europe, and particularly the UK, does just that.

In the UK the government has allowed lawyers to accept libel and privacy cases on what is known as a conditional fee arrangement.  That means if they win the case not only does the loser have to pay his/her own lawyers, but also the costs for the winning lawyers plus what is generically known as a success fee. The difference between a contingency fee and the conditional fee is that success fee which in some cases has approached £1 million and/or 100% of actual fees.

Thus a publisher of a “dicey” story has to consider whether it is worth the possible legal fees involved if sued and if sued then to settle without going to court because the cost of losing would be prohibitive. The British media have long said that such success fees inhibit a free press and now the European Court has unanimously agreed telling the UK government it was wrong to sanction such fees.

The case before the court involved super-model Naomi Campbell who back in 2001 sued the Daily Mirror tabloid for writing an article and printing photos of her leaving a Narcotics Anonymous meeting. A UK Court ruled that was not only an invasion of her privacy but the newspaper had also violated the Data Protection Act and awarded her £3,500 damages. But along with that, and after two appeals – the newspaper had won at the Court of Appeals level but lost again at the House of Lords (now the Supreme Court) – the Mirror was stuck with £850,000 in legal fees of which £365,000 was the success fee. The newspaper negotiated it all down to £500,000 but still appealed the success fee to the European Court.

And that Court came down hard against the success fee concept as applied in the UK. “The court considers that the requirement that the applicant pay fees to the claimant were disproportionate having regards to the legitimate aims to be achieved and exceeded even the broad margin of appreciation accorded to the government in such matters.”

The UK Ministry of Justice which has already been looking into libel and privacy reforms, including the legal fees structure, said after the judgment, “We want to deter avoidable or unnecessary cases by ensuring claimants have a financial interest in controlling legal costs….Under the current arrangements claimants generally have no interest in the costs incurred because, win or lose, they do not have to pay anything towards them. Our proposals are designed to correct this and prevent the situation in which, regardless of the merits of their case, defendants are forced to settle for fear of prohibitive costs.”

The UK government has received a report saying success fees should be killed and lawyers limited to 25% of an award. Lawyers say if that came into effect it would deter them from accepting cases – for instance Campbell was awarded just £3,500 for her privacy claim so would the lawyers have settled for just £750 No way, and that means Campbell would have had to pay them big-time out of her own pocket. Would she have taken the case if she knew it would cost her a fortune? Doubtful, and that is what the discussion is all about. The Court didn’t actually say success fees were not allowable, but rather they had to be “proportional” so the UK could still come out with new rules that allow such fees.

The UK press has long argued that the rich and powerful have taken advantage of the conditional fee concept whereas the government’s original intention was that it would permit people who otherwise could not afford to bring legal action to do so. Indeed, the European Court noted that Campbell was a very wealthy individual for whom the conditional fee concept was not intended.

In a strong indication of how the court feels about privacy matters, especially when they come in conflict with freedom of expression, the court ruled 6-1 that the original invasion of privacy judgment for Campbell against the newspaper was correct, saying there needed to be a balance between "The public interest in the publication of the articles and photographs of Ms Campbell, and the need to protect her private life. Given that the sole purpose of the publication of the photographs and articles had been to satisfy the curiosity of a particular readership about the details of a public figure's private life, those publications had not contributed to any debate of general interest to society." The Mirror has long argued the story was published in the “public interest,” but it seems when it comes to privacy the court says that is not an allowable defense.

The court is expected to come down later this year with rulings in two invasion of privacy cases, one involving former Formula 1 President Max Mosley and the other Princess Caroline of Monaco, that are expected to tighten European privacy law to the extent of banning stories and pictures concerning a person’s private life, no matter how “public” that person might be and how interested the public might be.

See also in ftm Knowledge

The Privacy Issue

The privacy issue touches every aspect of media. From consumer protection and the rights of individuals to news coverage privacy is hotly debated. New media and old media stumble and the courts decide. ftm offers views from every side of the Privacy Issue. 37 pages. PDF (April 2010)

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