What better evening to launch the second edition of Tugendhat and Christie’s The Law of Privacy and the Media than the day on which the European Court of Human Rights handed down its hotly anticipated decision in Mosley v the United Kingdom?

On 10 May, the publishers Oxford University Press must have been slapping themselves on the back for their good timing.

The judges and senior practitioners present talked of little else.

At the launch of the first edition, back in 2002, Naomi Campbell was no more than a supermodel – rather than the victor of a landmark privacy case in the House of Lords that she later became.

In so doing she acted as midwife at the birth of new cause of action sired by the Human Rights Act out of the grande dame of the existing law of breach of confidence.

By 10 May 2011, the law of misuse of private information and the article 8 rights that it protects, is no longer a baby; but it is still a problem child, warring constantly with its article 10 sibling, free speech.

One battle in the war pitted Max Mosley, former president of the Fédération Internationale de l’Automobile (FIA), against the British government.

Mosley had brought proceedings against the News of the World and its publisher News Group Newspapers Limited for the publication of a front-page ‘sexposé’, bringing to the world’s attention not only his penchant for dominatrices, but illustrating the fact with surreptitiously taken salacious photographs and video footage, alongside allegations of Nazi role-playing.

His application for an injunction to prevent further publication had been unsuccessful.

Not put on notice in advance by the paper that the story was even on the cards, the revelations were as much of a surprise to him as to many readers over their Sunday morning tea and toast.

By the time he got before Mr Justice Eady on his injunction application, the material was so widely accessible across the internet that, the judge concluded, an injunction against the defendant publisher would have made very little practical difference – ‘the dam has effectively burst’.

And in such cases, ‘the court should guard against slipping into playing the role of King Canute.’

Undeterred, Mosley did not slink away as many privacy claimants might at this stage, but pursued his substantive claim for privacy invasion, during which his personal peccadilloes were further picked through in the full glare of the media spotlight.

Mr Justice Eady sought to balance his right to respect for his private and family life, guaranteed by article 8 of the European Convention on Human Rights, with the article 10 rights of the media to publish.

In doing so, the judge found there was no Nazi element to the sexual role-play between Mosley and his playmates; had there been it could have substantiated a public interest hypocrisy justification for publication, as Mosley had openly distanced himself from the activities of his father, Oswald, the former Blackshirt leader.

Without such or other justification, the undeniably intimate private material had been unjustifiably published without consent; Mosley won his privacy claim and was awarded £60,000 plus costs.

But damages are a poor remedy for the party whose private moments have been shared with the world.

And the judge accepted that ‘no amount of damages can fully compensate the claimant for the damage done’.

He felt constrained from awarding any more substantial, punitive damages however, which might have served as a deterrent to publishers, because of their potential ‘chilling effect’ on free speech.

Mosley was not satisfied.

His real complaint was not the level of damages but the fact that he had not received any pre-publication notification of the story.

As a result, he had been deprived of the possibility of the only real remedy that would have been of any benefit to him – an injunction to prevent publication.

On that basis, he petitioned the European Court of Human Rights to find that privacy laws applied by the UK government provided inadequate protection for his privacy and were not compliant with the convention.

The European judges sympathised with Mosley – even confirming that the conduct of the News of the World was ‘open to severe criticism’.

But they ruled that, in light of the chilling effect any pre-publication notification requirement would have on free speech, the ‘significant doubts’ as to its effectiveness, and given the margin of appreciation allowed to the domestic courts to achieve a balance between convention rights, there was no violation of article 8.

No surprise, then, that editors and their in-house lawyers have allowed themselves a moment of celebration.

A ruling in the alternative would, they argue, have straitjacketed them in their role as the ‘watchdog and bloodhound of society’.

Any legal requirement, with serious sanctions, requiring them to approach the subject of a story in advance and effectively ask for permission to publish – knowing that the claimant with guts and money would likely apply for an injunction to kill, or at least wound, their scoop – would severely restrict the freedom of the press.

Is prior notice really such a bogeyman?

The media argues that it notifies subjects nine times out of 10, giving rise to suggestions that the requirement could surely have been set fairly simply into a legislative or regulatory framework.

But voluntary notification, not obligation, is a horse of a different colour.

The media will not give the game away where it considers that its article 10 right will win out by way of public interest justification – or, presumably, when it also considers that the risk is worth taking on commercial grounds.

If punitive damages cannot be awarded, it is inevitable that the revenue from highly salacious tales of infidelity and intrigue will eclipse the damages – perhaps even the costs – of a breach of confidence claim after the event.

Should, of course, the exposed public figure even have the stomach for the fight.

Requiring pre-publication notification by the media would have required a substantial change to the rules in a game where in reality, claimants argue, the cards are all in the hands of the editors.

It is they who have the power to decide whether to show their hand to the story’s subject, or to whether to keep a poker face until the printing is done.

Allowing the judiciary at least to hold the ring while the respective rights were considered, which is only possible if the subject gets wind of the story and can get to court in time, would have required both parties to put their cards on the table.

But in the absence of any break on editors taking unilateral decisions as to publication, and high-handedly playing god with the private lives of public figures, there is no real reason why the media will not continue to do so.

Punitive damages might have been an acceptable option.

It is true that no amount of damages will clear up the mess after the private beans have been spilled.

But they could serve as a deterrent.

Luke Staiano of claimant media firm Carter-Ruck says the European court missed a trick in not laying the groundwork for exemplary damages: ‘In one fell swoop exemplary damages in privacy cases could rebalance the perceived problems with the current state of English privacy law.

'Their availability would have a two-fold effect. First, judges may be less likely to grant an interim injunction prohibiting publication, regarding exemplary damages as an adequate remedy.

'Second, their threat might make the press think twice before publishing truly private information.’

Dr Andrew Scott, head of media law at the London School of Economics, does not see that media claimants should be given special treatment.

He gives the analogy of a child injured in the playground by a stone thrown in bravado:

‘No-one would argue that monetary compensation for the loss of an eye can restore sight to the victim,’ he says, but ‘assuming they were awarded at a sufficiently high level, damages would be generally understood to be fair and just satisfaction, and hence an effective remedy'.

By failing to put down a marker with the media, there are some who fear that the European court’s decision gives carte blanche to the tabloids to throw metaphorical stones; indeed, to march into the private lives of individuals, notebook and video camera in one hand, cheque book in the other, free to invade, provided they pay the very modest price of entry.

‘It is a shame that the court did not grasp the nettle,’ Mosley’s lawyer Dominic Crossley told the Gazette.

‘It sounds obvious, but the technique of not notifying remains a completely effective technique of denying any privacy rights.’

In reality, was a marker ever really on the cards?

The mainstream media has been joined by campaigners, bloggers, tweeters and politicians, including the prime minister, loudly to denounce our media laws, decrying defamation law as draconian and in need of reform – successfully leading to a new defamation bill, currently at consultation stage.

There has also been a huge hue and cry about so-called super-injunctions, instilling fear in the public that Britain is a country of secret justice, and that they are being deprived of the real extent of tittle-tattle and celebrity gossip to which, in a democracy, they are entitled.

Indeed, talk of privacy and media reform has self-confidently jostled for its place alongside stories of Middle-East unrest, the death of Bin Laden, earthquakes and fears for nuclear disaster.

‘There is probably a genuine fear born of misunderstandings of injunctions and super-injunctions that does need to be dealt with,’ says Crossley.

And there is agreement from some in the defendant camp that the extent of super-injunctions has been wildly exaggerated.

‘There’s been a lot said about super-injunctions, by which I mean an order whose existence cannot be reported,’ says Gill Phillips, director of editorial legal services at the Guardian, but ‘most of the hot air has in fact been about anonymised privacy injunctions’.

And in injunction applications, maintains Phillips, the balancing act between articles 8 and 10, ‘currently favours privacy over freedom of expression’.

But the bad press for injunctions is largely unjustified.

‘There’s no point in attacking the symptom,’ says Gazette columnist Joshua Rozenberg.

‘One should be attacking the cause, which is the law. The injunction is only there to uphold the law.

'I would certainly see scope for narrowing the law of privacy.’

But if a practical consideration such as pre-notification is not to be contemplated, would a privacy act make any real difference?

‘In practice it’s very hard to come up with actual words or phrases that are going to make a difference,’ observes Phillips.

After all, despite complaints that privacy law is being made by judges though the back door, the existing law is enshrined in legislation.

‘If you read Hansard,’ says Mark Warby QC, co-editor of the The Law of Privacy and the Media, ‘you will see that in 1998, when the Human Rights Act was passed, parliament took a deliberate and informed decision to leave the development of the law to the judges.

'Developing the law is a task that parliament specifically set the judges to do’.

Despite the UK’s success in Strasbourg, the media did not emerge from the case smelling of roses.

As noted above, the European court condemned the conduct of the News of the World as ‘open to severe criticism’.

This is some small comfort to Mosley – who presumably knew that already – or his lawyer who, while noting that the court had recognised his client had been treated ‘appallingly’, says that, in the circumstances, he would have been surprised if the judgment had done anything else.

But they were stymied in their real aim, to ensure provision for ‘an effective and practical remedy for those that are going to be under attack by the British tabloids’.

If this decision has not changed the law to the detriment of the British media, and may not in fact be the catalyst for a statutory privacy act, will anything change in practice?

It is inevitable that the media will continue to publish stories that sell newspapers, whether they are highbrow, public interest articles uncovering corruption, or tabloid tales of celebrity cellulite and footballers’ offside fumbles.

They will continue to notify when they consider it appropriate and not when they don’t or won’t take the risk.

It is equally inevitable that the judiciary will continue to see the media in an unfavourable light when the claimant gets his case out of the starting gate and brings the media defendant before the court, if it can show no proper justification for the publication of intrusive tittle-tattle.

Although Mosley’s lawyer fears that ‘anyone seeking an injunction will do so with a great deal of trepidation’, those faced with the exposure of their private information may have no option and will have to continue to weigh the risk of exposure and the costs and concerns of going to court.

There is no doubt that the media harrumphing is having its effect.

On the impact of the anti-media law soap-boxing of late on the Strasbourg decision, Mosley’s lawyer commented: ‘It would be wrong to think that these decisions are being made in a bubble.’

The campaign appeared to be, he said, ‘extremely effective’ and ‘not to be underestimated’.

The victory for the UK – and its media – will have brought smiles to the faces of most editors and newspaper lawyers. Phillips confirmed: ‘We breathed a sigh of relief when the decision was published.’

Caroline Kean, a partner at law firm Wiggin, who acts for publishers and media defendants, welcomed the result as ‘a rational and sensible decision that goes some way to calm the hysteria that has grown up in recent years over privacy issues’.

A man of few words, Tom Crone, legal manager of News Group Newspapers, is ‘happy’ with the result.

Mosley’s lawyer is quietly ‘confident that sense will prevail. When people really think about this properly … they will realise that proper protection is needed.’

To this end, he and his client are ‘considering the judgment’ and are ‘not ruling out the possibility’ of petitioning the Grand Chamber.

The judgment may not then be the end of what is a bumpy road for both sides of the media divide.

Media specialist Amber Melville-Brown is of counsel at Withers