There is a case before the European Court of Human Rights which, if upheld, will fundamentally change the way the British media operate currently, often getting away with murder under the cloak of free speech.

Long used to the idea of “publish and be damned,” the British media will have to unlearn a lot of old tricks if the European Court of Human Rights (ECHR) upholds a move that would force newspapers to inform anyone they plan to run a story about — and warn them that it could potentially breach their privacy, thus giving them time to seek an injunction against its publication if they wish.

The good news, if the move goes through, will be that it will put an end to Britain's notorious kiss-and-tell media culture that has made nonsense of any notion of privacy. Currently, anyone with a story about the private life of a public figure, especially if it has a sex angle and the narrator is a woman, is guaranteed to make millions of pounds by selling it to a newspaper. Often, stories are acquired through brazenly criminal methods as the widely reported phone-tapping scandal, involving the News of the World (NoW), illustrates. In a flagrant breach of privacy laws, journalists on NoW, one of Britain's best-selling tabloids and published by Rupert Murdoch's same company that publishes the venerable Times, illegally hacked into phone messages of many public figures, including members of the royal family, in search of salacious stories. And when caught the newspaper attempted to buy its victims' silence by making secret payments in damages.

Indeed, the case before the ECHR too has its origins in a NoW story and, if upheld, it will fundamentally change the way the British media operate currently, often getting away with murder under the cloak of free speech. Sometime, even mainstream quality newspapers care little about people's privacy concerns in the scramble for “exclusives.” The way the story of Madeleine McCann, a four-year-old girl who mysteriously disappeared while on a holiday with her parents in Portugal three years ago, was treated by even the high-brow national newspapers was simply scandalous. The private lives of her parents were stripped inside out on the pretext of “investigative” journalism and to back bizarre claims about their alleged complicity in the disappearance of their own child. Some editors now acknowledge that it was not their best moment.

The argument against a stronger privacy regime, though, is that the rich and the powerful will use it to gag free speech in the name of protecting their privacy.

John Kampfner, chief executive of Index on Censorship, has called it an “extremely dangerous” move saying that “legitimate” privacy concerns are being used as a “battering ram against good and legitimate investigative journalism.”

Similar concerns have been raised by other free speech campaigners with the man behind the ECHR case — Max Mosley, the former Formula One boss — being accused of seeking a “licence” to stifle investigative reporting.

Mr. Mosley approached the European Court following a controversy over a sensational NoW report two years ago about his sex-life that cost him his job at Formula One and left his public image in tatters. He sued the newspaper and was awarded £60,000 in damages. But he claims that it was not enough to repair the damage done to his reputation and wants Britain's privacy laws to be tightened to bring them in line with the European Convention on Human Rights to which it is a signatory.

“What Mosley is doing is trying to drive a coach and horses through the rules and get injunctions against newspapers prior to publication.... Are we really saying that next time we want to write a story about a public figure, we should give them 48 hours' notice?” asked Mark Stephens who is representing free speech groups in the case.

Mr. Mosley insists that he is simply seeking to protect innocent people from having their privacy invaded just because voyeurism helps to sell newspapers. His argument is that there is already a law on the subject but in order for courts to enforce it a case must be brought before them and this can happen only if the person concerned is aware of the threat to his/her privacy. If a newspaper keeps its intention to publish a potentially damaging story secret, the person likely to be affected by it cannot approach the courts to enforce the law.

Much as we may dislike the Mosleys of the world or the way they conduct themselves after office hours their private life remains their private life so long as they don't portray themselves in public as moral crusaders or paragons of virtue. And Mr. Mosley has never done that. There is no point blaming him for the pickle in which the newspapers find themselves.

The reason why it has come to this is because self-regulation by the media has failed. The Press Complaints Commission (PCC) has no real powers to enforce its voluntary code of ethics and is seen to have been reduced to being a handmaiden of proprietors and editors. Only last week, it got a ticking off from a cross-party parliamentary committee for failing to make self-regulation work. The committee singled out the coverage of the McCann story to point to the PCC's failure to exercise a restraining influence on newspapers. It made a series of recommendations to give the Commission more teeth, including the power to impose fines on recalcitrant newspapers.

But who will bell the cat?


In the above column, the writer clarifies that the quotes attributed to John Kampfner (chief executive of Index on Censorship) and Mark Stephens (who is representing free speech groups) were taken from the Independent newspaper.