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Mosley’s racy sex life is none of our business

DEBATE: The outcome of Mosley v News of the World is a well-deserved victory for personal freedom and privacy.

Barbara Hewson

Topics Politics

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Last Thursday, the High Court in London awarded the boss of Formula One motor racing, Max Mosley, £60,000 in damages following the publication of lurid stories about him in a British Sunday newspaper, the News of the World (NOTW). Mr Justice Eady ruled that the newspaper had violated Mosley’s right to privacy when reporting on a sado-masochistic sex session and rejected the newspaper’s defence that Mosley’s conduct was a matter of public interest.

Here, two regular spiked writers debate the merits of the ruling. Below, barrister Barbara Hewson applauds the judgement, arguing that we have a right to a private life which should be protected in law. In response, journalist Tessa Mayes argues that the Mosley case represents the latest in a series of attacks on press freedom.

It was good to see the High Court beating NOTW publishers, News Group Newspapers Ltd (NGNL), into submission in the Max Mosley trial last week.

Although Mr Justice Eady has said that his judgment is not a landmark ruling, it certainly is – for two reasons. First, the court has said, definitively and uncompromisingly, that ‘the private conduct of adults is essentially no one else’s business’. Second, it has ruled against the introduction of exemplary or punitive damages for invasion of privacy.

Mosley, unsurprisingly, was delighted about the verdict. The NOTW, on its part, complained outside court that Mosley had failed to ‘honour the standards’ expected of someone heading up the richest sporting organisation in the world. Mosley had engaged in ‘depraved and brutal S&M orgies’, the newspaper editor said sanctimoniously, which is not ‘fit and proper behaviour’ for someone in Mosley’s position.

This was a feeble attempt to regain the moral high ground by a losing party which had failed to prove its original claim. According to the NOTW, Mosley had mocked Nazi horrors for private sexual gratification. The newspaper put footage of the alleged ‘sick Nazi orgy’ on its website, where it was seen by huge numbers of people. In this case, the newspaper only has itself to blame for some lousy journalism.

For well over a century, the tabloid press in Britain has hounded people whose sexual proclivities and indiscretions make good copy. As Oscar Wilde said, ‘we have the most serious journalists in the world, and the most indecent newspapers’. But prior to the introduction of the Human Rights Act 1998, there was little victims could do about it. That Act has given us a law of privacy, the rationale of which is that ‘the law is concerned to prevent the violation of a citizen’s autonomy, dignity and self-esteem’.

The Mosley case should be remembered as the one where the tabloid press met its Waterloo. In a public and angry courtroom crusade, Mosley sued NGNL for breach of confidence, and sought aggravated and exemplary damages. He invoked his right to respect for private life under Article 8 of the European Convention on Human Rights. The hearing became a platform for talking about S&M.

Four women participants in the session gave evidence anonymously for Mosley, saying they felt utterly betrayed by the exposé, while the newspaper’s informant did not come forward. The judge showed considerable sympathy for Mosley, saying that the scale of the distress and indignity suffered was difficult to comprehend, and probably unprecedented.

The judge agreed with Mosley that the S&M session was indeed private. He said that it was ‘fairly obvious’ that clandestine recording of a private sex session violates both the common law of confidence and Article 8. This meant that NGNL had to justify breaching privacy, by reference to some overriding public interest.

The test of what is meant by ‘public interest’ is a high one, following the decision of the European Court of Human Rights in Von Hannover v Germany (2004) 40 EHRR 1: it is not sufficient that the person concerned happens to be a public figure. Moreover, the courts have acknowledged that the media’s own assessment of what is in the public interest often tends to be confused with its own interest

NGNL cited various justifications: it said the participants in the session were committing criminal assaults on each other, which the judge described as an artificial argument verging on desperation. It invoked a Nazi theme, but failed to produce any proof. The judge said there was no evidence of Nazi material in the video footage and photos produced. Though participants spoke in German, the paper did not get a translation to see what was actually being said. Both the editor and the chief reporter, the judge found, simply ‘thought there was a Nazi element – not least because that was what they wanted to believe’. This was irresponsible journalism.

The judge accepted that if NGNL could prove that Mosley had, for sexual gratification, been parodying Nazi horrors, there could have been a public interest in revealing this to those in Formula One’s governing body, the FIA, to whom Mosley was accountable. But that is not the same as being free to tell the world about it. Mr Justice Eady accepted that others might disagree with him on this point.

His judgment is a damning exposé of standards in tabloid journalism, revealing several shortcomings, errors and misconduct:

  • First, the paper’s abject failure to get any concrete evidence of the Nazi theme before it leapt into print, in a casual and cavalier way, not even bothering to keep notes of interviews with informants;
  • Second, presenting its chief informant with ‘what purported to be a transcript of an interview which it asked her to sign [which] would appear to have been a fait accompli’;
  • Third, its threats, tantamount to blackmail, to intimidate two of the five women participating in the S&M session into ‘giving their story’ or facing public exposure. Blackmail is a serious criminal offence. Evidently, the paper’s chief reporter did not understand the elementary point that ‘blackmail can be committed by the threat to do something which would not, in itself, be unlawful’. Nor did his editor think this objectionable, which Mr Justice Eady said ‘discloses a remarkable state of affairs’.

Finally, the newspaper fell back on the threadbare argument that the press has a right to expose depravity and adultery. The judge was having none of it. His ruling is studded with statements upholding the right of individuals to express their sexuality in private, and to be let alone. He said:

  • ‘People’s sex lives are to be regarded as essentially their own business’;
  • ‘Even those who have committed serious crimes do not become “outlaws” so far as their own rights, including rights of personal privacy, are concerned’;
  • ‘Private fantasies should not in themselves be subjected to legal scrutiny by the courts’;
  • ‘Sexual conduct is a significant aspect of human life in respect of which people should be free to choose’;
  • ‘It is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law. That is so whether the motive for such intrusion is merely prurience or a moral crusade’;
  • ‘It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they are entitled to hound those who practise them or to detract from their right to live life as they choose.’

The one area where the NOTW succeeded was on the issue of whether punitive damages should be awarded. This was a novel point, and the judge ruled that there was no precedent for it. However, his award to Mosley of £60,000 is large by the standards of previous privacy cases – for example, supermodel Naomi Campbell was awarded damages of £3,500 after the Daily Mirror published a picture of her leaving a Narcotics Anonymous meeting.

But the court accepted that the violation of privacy involved ‘struck at the core of [Mosley’s] personality’. It agreed that unless substantial damages were awarded, ‘[t]he easier it would be for the media to hound minorities’. Indeed, it’s a memorable aspect of this case that the judge refused to allow a sexual minority to be victimised in the name of press freedom.

Critics of this ruling will argue that it will have a chilling effect on legitimate investigations into matters of genuine public interest. The stark lesson for tabloids is that publications whose sole aim is to gratify public curiosity as to details of a person’s private life, however famous, are not in the public interest.

Barbara Hewson is a barrister at Hardwicke Building in London.

Previously on spiked

Tessa Mayes saw the ruling against NOTW as a ruling against free speech. She also looked at privacy in light of Paul McCartney’s divorce from Heather Mills. Elsewhere, she stood up for the right to photograph and write about public figures – including Prince William’s girlfriend – and looked at how Princess Caroline of Monaco used the EU to defend her privacy. Josie Appleton asserted the importance of privacy, and Rob Killick explained why it’s important to have spaces that are free from the prying eyes of officialdom. Or read more at spiked issue Privacy.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

Topics Politics

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