MediaWatch: The Daily Mail Relies on Its Arch-Nemesis the ECHR for Partial Court Win

The Daily Mail has been gifted a partial victory by its number one enemy, the European Court of Human Rights, in a case against the Government over high legal costs in defamation and privacy cases. 

The European Court of Human Rights in Strasbourg – long a target of outraged front-pages from the Mail – sided this Tuesday with Mail owner Associated Newspapers (DMGT) in claiming its free speech rights had been violated. 

Associated Newspapers Limited, the publisher of the Daily Mail and the Mail on Sunday, had been obliged to pay extensive costs incurred by claimants who had successfully sued it in privacy and defamation proceedings, following articles the paper published in print or online in 2017 and 2019. 

One of the claimants had entered into a so-called conditional fee arrangement (CFA) with his legal representatives, and both had also taken out “after-the-event” (ATE) insurance which can result in significant cost demands on the losing side, for example following drawn-out and costly libel cases. 

As Press Gazette reported: “Associated complained about CFAs in relation to a privacy case brought by a man named by Mail Online after he was arrested, but never charged, on suspicion of involvement in the 2017 Manchester Arena terror attack…

“Associated was ordered to pay the man £83,000 in damages plus costs of £822,421.79, which included £245,775 plus VAT for the success fee agreed between the man and his lawyer.”

In the 2019 defamation case which the Mail also lost, owner Associated Newspapers Ltd had been liable not only for the claimants’ core legal fees, but also for fee uplifts, including the “success fee” as part of the conditional fee arrangement, and for their ATE insurance premiums.

In a double irony, or perhaps hypocrisy, those schemes the Mail complained about to the Court have effectively replaced legal aid for large numbers of relatively low-income (but not completely impoverished) people. 

Legal aid was drastically cut back, amid cheering from the Daily Mail, under the last Conservative Government, bolstering the no-win-no-fee sector and the hefty premiums to pay for it.  

The paper had claimed its freedom of expression (Article 10 of the ECHR) had been infringed by having to pay the success fees to claimants’ lawyers in defamation and privacy cases. The Court ruled in favour of the publisher on this front. 

But in a split verdict, the European Court found no violation regarding the requirement to pay “after-the-event” (ATE) insurance premiums.

Human Rights Groups Rejoice

Human rights groups, so frequently at the end of attacks as “lefty lawyers” or “woke activists” by the Mail, look forward to the paper throwing its weight behind the ECHR.

Sam Grant, Director of External Relations at Liberty told Byline Times: “For over 70 years, the European Convention of Human Rights has defended us all; protecting, among others, LGBT rights, religious freedoms, and today the Daily Mail.

“No matter our view on the ECHR, we all benefit from the rights it enshrines, which is why we must ensure that it remains an integral part of UK law.” 

Tom Southerden Legal Programme Director for Amnesty, added: “We can only hope today’s success at the European Court of Human Rights might make the Mail reflect on its tendency towards rights bashing.

“Human rights have to apply to all of us equally in order to have any force at all. Even, and perhaps especially, those who might be less than wholly sympathetic.”

The Background

The case arose from two separate legal actions against the Daily Mail. The first involved a Libyan businessman wrongly identified as a suspect in the Manchester Arena terror attack, which cost the newspaper £822,421 including a £245,775 success fee. 

In a statement from the ECHR, a spokesperson said: “The Court did not find that the requirement for the newspaper company to cover [the claimants’] ATE insurance premiums had been disproportionate. As a Libyan refugee who had lost his employment, there was nothing to show that [his initials] AS could have paid the applicant company’s costs if his claim had been unsuccessful. 

The second concerned a clinical psychologist named in articles about Operation Midland child abuse investigations, resulting in costs of £709,095, including £335,160 for ATE insurance.

The Court statement read: “EH, a clinical psychologist, would probably not have been in a position to pay the media company’s costs. In contrast, Associated Newspapers Limited was the publisher of a leading daily newspaper which could be expected to have insurance against such litigation.” 

But in ruling against the (separate) success fees, the Court maintained its position from a 2011 judgment that such fees are disproportionate to their aim of ensuring public access to legal services. It described the costs as “eye-watering” and found no evidence to justify departing from its previous stance that the system is fundamentally flawed.

Track Record

Earlier this year, legal campaigners Good Law Project sent the newspaper a data subject access request, to check if they were using or storing personal information on GLP’s director. 

As GLP noted in June: “The Mail pushed back, having the chutzpah to argue that carrying out the search ‘would be wholly disproportionate and an unwarranted interference with its Article 10 rights’. That’s an article which protects freedom of expression in – you guessed it – the European Convention on Human Rights.” 

And in 2012, the publisher of the Daily Mail claimed that proposed penalties for newspapers that do not sign up to Government-backed press regulation would breach the European Convention on Human Rights. That part of the aftermath of the Leveson inquiry into law-breaking and abuse by the press was never implemented. 

Legal Ripples

The judgment is not yet final and can be appealed within three months. While the Court has ordered the UK to pay €15,000 in costs and expenses,  the exact financial implications of this latest Mail ruling will be determined in a separate decision in the coming months. 

The ruling could have significant implications for how media litigation costs are handled in the UK, particularly regarding the system of success fees in defamation and privacy cases.

This case was given high priority by the Court, indicating it makes a significant contribution to the development of European human rights case law. 

The ECHR is part of the Council of Europe and is the highest court for UK human rights claims, though many end at the UK Supreme Court. 

This latest judgement builds on previous landmark cases, including Mirror Group Newspapers Limited v. UK.

Model and celebrity Kate Moss had previously sued the Mirror for breach of her privacy over its coverage of drug rehab, and won. 

But the case went to the European Court when the Mirror complained that having to pay Moss’ lawyers’ “success fee” was excessive, on which point the Mirror Group won.

Commenting on this week’s Mail ruling in the ECHR, Richard Wilson, founder of Stop Funding Hate, said: “The Daily Mail’s demonisation of minority communities has fuelled a climate in which stripping away basic human rights protections has come to be seen as acceptable – or even necessary.

“But it seems that it’s one rule for the Mail and another for the rest of us.

“So the next time you see a Mail headline telling us that “human rights do not exist” or denouncing a court ruling upholding the rights of refugees or trans people, remember that they’re always happy to rely on human rights law when it favours them.”      

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Josiah Mortimer also writes the On the Ground column, exclusive to the print edition of Byline Times.

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