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'Stark implications' of Mosley privacy judgment

Last week’s judgment in the Max Mosley case has been widely seen as a significant blow to the rights of newspapers to report on the private lives of celebrities. Here, in our weekly Law Column, media lawyer Nigel Hanson examines the implications of the case.


As Max Mosley soothes his injured dignity with £60,000 in damages following a high-profile privacy win over the News of the World, the media are reeling from the latest blow to press freedom.

Mr Justice Eady suggested there was “nothing landmark” about his ruling that the NoW had unlawfully infringed the motorsport boss’s right to privacy by publishing his involvement in sado-masochistic sexual activities with five women in a Chelsea basement.

But in reality, rarely have the limits of our media’s right to probe, investigate and intrude been so starkly exposed as in this eye-catching spanking case.

True, Eady J. applied a two-stage test that has long been a landmark of English privacy law.

Did Mosley have a reasonable expectation of privacy, under Article 8 of the European Convention on Human Rights? And if so, was there a countervailing reason why publication was nevertheless justified, in accordance with Article 10?

Nothing new there.

Nothing particularly new, either, in the fact that the newspaper’s three key public interest arguments were left threadbare after punishing cross-examination.

The judge ruled there were no Nazi connotations to the S&M session that might have justified publication.

He said it was “verging on desperation” to claim it was in the public interest to expose alleged criminality on the basis that Mosley may have incited a criminal assault upon himself.

And he gave short shrift to the argument that the NoW was justified in exposing perceived immorality in the blood-letting S&M session.

But what is new – or certainly feels new – is the rather extreme precedent we now have that the leader of a hugely wealthy sport, that has millions of fans and influential business partners worldwide, is perfectly entitled to keep private an expensive predilection for brutal S&M sex which many would say raises important questions about his personality.

In this “new rights-based jurisprudence,” said the judge, we must put aside any subjective notions of morality. He effectively spelled the end of tabloid ‘kiss-and-tell’ journalism with the following libertarian words:

“It is important…remedies are not refused because an individual journalist or judge finds the conduct distasteful or contrary to moral or religious teaching. Where the law is not breached, the private conduct of adults is essentially no one else’s business. The fact that a particular relationship happens to be adulterous, or that someone’s tastes are unconventional or “perverted” does not give the media carte blanche.”

In another important passage, he said the correct approach to balancing privacy and free speech rights was “obviously incompatible with making broad generalisations of the kind to which the media often resorted in the past such as, for example, ‘Public figures must expect to have less privacy.'”

Whilst the judge’s live-and-let-live attitude may be refreshingly modern, his morality-free logic has implications that feel, well, odd.

Would a married Prime Minister attending brutal S&M sessions be entitled to keep such information private? Quite possibly, in the light of the Mosley ruling – unless there were political hypocrisy that justified publication to expose double-standards, or some other exceptional circumstances.

The effect is that the “public interest” zone in which our news media have traditionally operated has been significantly curtailed. Expect more privacy writs and injunction applications from all quarters.

The important question is whether editors will feel sufficiently confident to investigate public figures and other individuals, and perform the media’s constitutional role as watchdog of democracy when privacy law is busy putting up ‘no entry’ signs.

There may be some comfort from the facts that Mosley’s damages were relatively modest at £60,000 and the judge refused a request for punitive (“exemplary”) damages.

But £60,000 is still a substantial sum for any regional publisher to find, and the NoW’s costs bill, reported to be more than £800,000, will make any news organisation think twice before tackling topics that are arguably private and defending claims that arise.

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
    To contact Nigel telephone 0800 0731 411 or e-mail [email protected]

    Comments

    Charles (29/07/2008 16:52:02)
    Twice in this story you describe Mosley’s S&M session as “brutal”. It was nothing of the kind. It was just a kinky party of a type you happen to disapprove of. Try reading the blogs of some of the people in “the scene”, or read Niki Flynn’s excellent book “Dances with Werewolves: Memoirs of a Spanking Model”. Just because people are into pain doesn’t make them unethical.