Mosley and Notification

A ruling by the European Court of Human Rights (4th Chamber) in Case of Mosley v United Kingdom (Application no. 48009/08) has rejected Max Mosley's request for a legal pre-publication requirement

Mosley, Formula 1 racing executive and son of the late BritFascist Sir Oswald, took action in 2008 against The News of the World over its publication of articles and videos that revealed his private life, in particular the feature article of 30 March 2008 titled "F1 boss has sick Nazi orgy with 5 hookers - Son of Hitler-loving fascist in sex shame" and claiming - in true NotW style - "Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert". The print edition included still images taken from video footage secretly recorded by one of the participants in Mosley's spanking session; extracts of the video were made available online by the NotW. (The recording had been made using a camera - supplied by NotW - secreted in the brassiere of one of the car czar's companions.)

The Court notes that the video footage was viewed over 1.4 million times over 30 and 31 March 2008, with the online version of the article being visited over 400,000 times during the same period and the print version of the NotW having an average circulation of over three million copies.

In Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) Justice Eady of the UK High Court concluded that the articles and images breached Mosley’s right to privacy. Mosley was awarded £60,000 in damages (currently the highest UK award of damages in a misuse of privacy case) and £420,000 costs.

Mosley appealed to the European Court of Human Rights, arguing that the UK was required by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to protect his private life, with a positive obligation to impose a legal duty on the NotW to notify him prior to publication of information which intruded upon his private life. That notification would provide an opportunity to obtain an injunction.

The Fourth Section of the Court of Human Rights in rejecting Mosley's request for a legal pre-publication requirement emphasised the need to look beyond the particular facts and consider the broader impact of a pre-notification requirement.

It noted that the UK courts had found no Nazi element in Mr Mosley’s sexual activities and had therefore concluded that there had been no public interest in, and therefore justification for, the publication of the articles and images. In addition, the newspaper had not appealed against the judgment. The Court therefore considered that the publications in question had resulted in a flagrant and unjustified invasion of Mr Mosley’s private life.

However, given that Mosley had achieved a finding in his favour before the UK court, the Fourth Chamber’s assessment concerned the balance between the right to privacy and the right to freedom of expression in relation to the UK legal system.

Reflecting comment by media interests such as Index on Censorship, the Media Lawyers' Association and European Publishers' Council that prior notification was inconsistent with the right to freedom of expression under Article 10 and that prior notification did not reflect the practicalities of journalism the Court noted the limited scope under Article 10 for restrictions on the freedom of the press regarding matter of general public interest.

Given concerns regarding the chilling effect of a pre-notification requirement, doubts about the effectiveness of such requirement and the latitude given to individual EU governments the Court held that Article 8 does not require a legally binding pre-notification requirement. It noted that any pre-notification requirement would only be as strong as the sanctions imposed for failure to observe it: a standard civil penalty would be unlikely to deter publishers, with a stronger penalty potentially being incompatible with Article 10.

A media release for Mosley quotes him as -

I am disappointed at today’s judgment, because I think that there is widespread recognition that privacy is fundamental to the way we live our lives. The potential for intrusion into our privacy is enormous and we need proper protection.

My current intention is to continue with my application by way a request to the Grand Chamber and I will be discussing this with my lawyers over the next few days.

Under Articles 43 and 44 of the Convention the Fourth Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court (a five judge panel). If the Grand Chamber considers the case deserves further examination it will hear the case and deliver a final judgment, reflecting practice in Australia's Federal Court. If the referral request is refused, the Fourth Chamber judgment will become final on that day.

The Court noted that the UK Government considered Mosley was no longer a victim of a Convention violation given, in particular, that he had been compensated by the newspaper as ordered by the UK courts. Mosley insisted that he remained a victim of violation by the UK of his right to privacy, given that the damages awarded were unable to restore his privacy after millions of people in the world had seen the material. The Court found that no sum of money awarded after disclosure could be a remedy for his specific complaint that there was no legal requirement in the UK that obliged the media to give advance warning of a publication related to a person's private life. Mosley could thus claim to still be a victim of a Convention violation.

The UK Government claimed that Mosley had not exhausted domestic remedies before taking his complaint before the Court, in particular arguing that he had not appealed against the ruling by Eady J on exemplary damages, that Mosley could have pursued an account of profits claim as opposed to a claim for damagesand that he had failed to complain under the UK Data Protection Act about the unauthorised processing of his personal information and to seek rectification or destruction of his personal data. Mosley considered the proposed remedies irrelevant to his complaint.

Poverty of Theory

From Richard Webster's 1983 piece 'E.P. Thompson and the Althusserian locusts: an exercise in practical criticism' -

As the various committee meetings of socialism have wandered in their discussions from practice to theory, from the concrete questions posed by the nature and circumstances of ordinary men and women to the metaphysical discussion of abstractions, Thompson has not hesitated to rise from his seat and, holding aloft the agenda-paper which has been neglected, to seize the chair from whichever self-appointed convenor has assumed it and recall the meeting to order. In The Poverty of Theory he does so again. Because he does not hesitate to hammer upon the table, because he speaks with thunder in his voice, nearly all those present have shown at least signs of attending to him

There can be no surer indicator of the weight and significance of Thompson’s voice within English Marxism than the appearance in 1980 of a book length study of Thompson's ideas and influence written by Perry Anderson. It was Anderson who, in the early 1960s so impressed the founders of the British New Left with his seeming intellectual fertility, his energy and his decisiveness that they, having reached in Thompson's words 'a point of personal, financial and organisational exhaustion' handed over editorial control of the New Left Review to him. This was in 1963. In the next few years those who had joined forces, sometimes at great personal cost, to construct the house of the New Left, woke up from their dream to find themselves outside the home which had once been theirs looking in on a new young occupant whose pride in ownership was tempered only by his evident distaste for the unfashionable and vulgar manner in which the house had been furnished by its original occupants. It was not long before those who stood outside their old home saw the first fleet of intercontinental removal lorries roll in. Swiftly and with very little fuss the old furniture was trundled out. That battered well-used sofa with its William Morris cover went out with it, earmarked for the dust-heap. The old kitchen chairs which were hewn from oak and worked crudely so that a little humanity had stuck to their rough forms, were now considered unusable. The old pictures were taken down from the walls and most of the books were stripped from the shelves, packed into tea-chests and loaded, along with the furniture, into the waiting container lorries. No sooner was the old furniture loaded up than was the new furniture carried proudly down the ramps of the same lorries. New steel and glass tables and chairs designed on the Bauhaus principle but purchased for the most part in Paris, were efficiently installed within the house – whose walls had already been replastered and painted in that uniform white beloved of the bourgeoisie. Only when the cantilever chair of mathematical catastrophe theory had been finally placed in position opposite the sofa of Althusserian structuralism and beneath the spotlight of Lacanian theory focussed by Juliet Mitchell did the new occupants begin to feel more secure and a little more at home. Unpacking their Habitat kitchen they started to cook meals which contained little goodness and less meat but which were deemed all the better for that.

Some few of those original occupants of the house who continued now and then to peer into its windows were impressed by what they saw. Withdrawing to their own establishments in provincial and university cities they quietly ordered furniture from the same suppliers and had it delivered to their door by men wearing the white overalls of the same inter-continental removal firm. Others were dismayed and retired to a distance. One in particular, however – and this was Thompson – returned to berate the new occupants. Although the charges he laid against them were arrogantly rebutted he refused to fall into the silence of deference or complicity. He returned again until eventually, in The Poverty of Theory, he produced a polemic of such power that it threatened to break apart even the newest and most gleaming pieces of intricately machined furniture contained within the usurped house of the New Left.

Barred votes

Australia's Federal Parliament has passed legislation to overturn a ban on prisoners voting and to increase the amount of time people have to enrol once an election is called.

The statute is the Electoral & Referendum Amendment (Enrolment & Prisoner Voting) Act 2010 (Cth). It reflects High Court decisions - Roach v Electoral Commissioner [2007] HCA 43 and Rowe v Electoral Commissioner [2010] HCA 46 The former overturned the Howard government's ban on prisoners voting. The latter addressed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), finding that the electoral rolls cannot be closed on the day writs are issued.

Prisoners serving a sentence under three years will now be able to vote. People will have seven days to enrol after election writs are issued.

The ABC quotes Special Minister of State Gary Gray as indicating that the Government respects the Court's decisions -

The amendments moved in 2006 were both unfortunate and inconsistent with both the spirit and the good governance of our electoral codes - they should not have happened.

The High Court agreed with that and the Government and the Parliament have today spoken on that matter.

The amendment reflects discussion highlighted here.

He would say that, wouldn't he

Malaysia's High Commissioner in Australia, following yesterday's announcement of an in principle agreement about asylum seekers, has responded to criticism of his country's treatment of asylum seekers and refugees by saying that they are treated with respect and dignity. His statement is somewhat askance with past reports (eg that noted here) and we might ask why Malaysia has failed to sign up to several human rights agreements.

Dato' Salman Ahmad is reported as indicating that Malaysia has reasons for not signing the UN Convention on Refugees.

Those reasons were apparently not specified and there's been no indication that the national government will move forward in the post-Mahathir era. We might speculate that international agreements such as the International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are inconsistent with Malaysia's bumiputra policy, restrictions on free speech, fondness for corporal punishment and provincial law criminalising apostasy.

The High Commissioner indicated that "This does not mean that we do not treat refugees with respect and dignity" (caning perhaps being one signifier of dignity) and offered reassurance. People transferred to Malaysia will "mingle" in the community while their claims are processed. "There is not going to be any centre so they are not going to be in detention".

I am more impressed by the comment from Amnesty International refugee coordinator Grahame Tom, who characterised the agreement as an "extraordinary" political over-reaction -

You know we really are talking about a minuscule amount of people, and yet to send them back to a country, which is not a signatory to the convention, where we know there are real problems with the treatment of refugees and asylum seekers is absolutely extraordinary

AHRC and discrimination

The Australian Human Rights Commission has released its 67 page consultation report on Protection from discrimination on the basis of sexual orientation and sex and/or gender identity in Australia [PDF].

The consultation concerns how protection from discrimination on the basis of sexual orientation might be included in federal law. The report notes that -

Very few protections from discrimination on the basis of sexual orientation exist in federal law.

The Commission can inquire into and attempt to conciliate complaints of discrimination on the basis of 'sexual preference' in employment and occupation. However, if a complaint is not able to be resolved through conciliation, all the Commission is able to do is to issue a report to the federal Attorney-General which is tabled in Parliament. There is no avenue to seek a tribunal or court hearing about discrimination of this kind. Commission recommendations are not enforceable.

Since the 1990s, federal industrial law has included limited protection from discrimination in employment on the basis of 'sexual preference'. The Fair Work Act 2009 (Cth) now prohibits discrimination on the basis of an employee's 'sexual preference' in relation to all aspects of employment, from hiring, to promotion and training opportunities, and to dismissal. The Fair Work Act also refers to discrimination on the basis of 'marital status' rather than using 'relationship status’ which would include people in same-sex relationships.

The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of 'sex'. Arguments that discrimination against lesbians and gay men on the basis of sexual orientation is a form of sex discrimination under the Sex Discrimination Act have been explicitly rejected by Australian tribunals and courts.

The Sex Discrimination Act also prohibits discrimination on the basis of 'marital status', however this does not cover same-sex relationships. The Commission has recommended that this ground of discrimination should include same-sex relationships. A Senate inquiry report has also recommended that the term 'marital status' be replaced with 'marital or relationship status' which would include people in same-sex relationships.

It goes on to comment that -

Equality for people of all sexual orientations and sex/and or gender identities is supported by international human rights agreements which Australia has agreed to observe. Taking steps to achieve such equality is the responsibility of the federal government. For this reason, the Commission is particularly pleased by the Government's commitment to introduce federal protections from discrimination on the basis of sexual orientation and sex and/or gender identity. ...

There are significant gaps in the legal protection from discrimination on the basis of sexual orientation and sex and/or gender identity at the state and territory level and almost no protections at the federal level. This consultation has clearly demonstrated the need for comprehensive protections. The stories of discrimination, vilification and harassment, and the explanations of the potential benefits of new protections from discrimination, were compelling.

The belief that federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity would lead to cultural change was a common theme of contributions to the consultation. The consultation heard widespread support for the inclusion of protection from discrimination on the basis of sexual orientation in federal anti-discrimination laws. The consultation also heard of the importance of ensuring that people of all sex and/or gender identities are protected from discrimination by the use of broad and inclusive terminology in federal anti-discrimination law. State and territory laws provide incomplete and inconsistent protection from discrimination in this area. A number of consultation participants expressed support for including protection on the basis of sex characteristics, gender identity and gender expression in order to achieve the broadest coverage of people of all sex and/or gender identities. The Commission also heard of the need to ensure that people who are intersex are expressly included in legislative protections from discrimination.

The consultation also heard of alarming levels of violence and harassment, particularly towards trans and intersex people. The Commission encourages the Government to give consideration to providing appropriate protections from vilification and harassment on the basis of sexual orientation and sex and/or gender identity in federal anti-discrimination law.

The Commission acknowledges that a small number of participants did not support the inclusion of protection from discrimination on the basis of sexual orientation and sex and/or gender identity in federal law. Some participants argued that there should be exemptions to laws prohibiting discrimination on these bases, particularly for religious organisations. Determining the extent of any exemptions must involve careful balancing of the right to be free from discrimination with the right to freedom of religion and belief. The Commission's view is that there should be further consultation and careful consideration of this issue.

Federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity would send a powerful message to our community regarding equality. The Commission supports the introduction of such laws, which could have a profound impact on reducing discrimination, vilification and harassment experienced by LGBTI people in Australia.

Recurrent (and often rather plaintive) reporting on human rights abuses makes me nostalgic for the bravery of Lionel Murphy, who was prepared to empower the Australian Law Reform Commission and to initiate legislative change that we now accept as both valuable and overdue.

Manga

Noted the provocative 'Lolicon: The Reality of 'Virtual Child Pornography' in Japan' [PDF] by Patrick Galbraith in 12(1) Image & Narrative (2011) 83-119.

Galbraith argues that -

As its popular culture rapidly disseminates around the world, there is increasing pressure on Japan to meet global standards for regulating child pornography, and certain types of purely fictional images have been implicated. One of the keywords is lolicon (or rorikon), used to describe manga, anime and games that feature "underage" characters in sexual and sometimes violent situations. This paper examines the large and long-standing community of fans (among those referred to as otaku) in Japan who produce and consume lolicon works to question the assumptions of media effects. In recent debates in Japan, proponents of new legislation, which was eventually adopted, argued that sexual and violent representations in manga and anime should be specially regulated because such content is "the same for whoever reads or watches and there is only one way to understand it". However, a review of lolicon culture suggests that messages and receptions are, and have always been, much more varied and complex. Even the relation between fiction and reality is not at all straightforward. Responding to the new legislation, Fujimoto Yukari comments that manga and anime are "not always about the representation of objects of desire that exist in reality, nor about compelling parties to realize their desires in reality". From a legal standpoint, no identifiable minor is involved in the production of lolicon and no physical harm is done. There is no evidence to support the claim that the existence of lolicon, or engagement with such content, encourages "cognitive distortions' or criminal acts. As Mark McLelland argues, criminalizing such material represents a form of "thought censorship" and a trend towards the "juridification of imagination". This potentially might shut down alternative spaces of imagination and communities negotiating or opposing dominant cultural meanings.

One response might be that Australian law traditionally - and in my view, on occasion appropriately - "juridifies" the imagination. Although we cannot prohibit thought we can as a society signal through restrictions on expression that that some acts are egregiously repugnant. That may involve shutting down some online or offline "alternative spaces of imagination and communities negotiating or opposing dominant cultural meanings".

Art and defamation

In Gant v The Age Company Ltd and Ors [2011] VSC 169 the Supreme Court of Victoria has made rulings on a defamation case that art trader Peter Gant brought against The Age, Wendy Whiteley and Stephen Nall regarding alleged imputations made against Gant in five articles, including imputations that Gant sold artworks that he knew to be fake.

The majority of the imputations were struck out and it was found that the cause of action in respect of the first article was statute barred under the Limitation of Actions Act 1958 (Vic) ss 5(1AAA) and 23B.