Sunday, 13 July 2008

Max Mosley case: bend over, free speech, this is going to hurt

From The Sunday Times

July 13, 2008

Max Mosley is suing for breach of privacy over reports he participated in a sadomasochistic ‘Nazi orgy’. The case has big implications for tabloid culture and freedom of expression

Giles Hattersley

In a chamber of the Royal Courts of Justice last week sat Max Mosley, grandee of motor racing and fan of sadomaso-chism. I sat close enough to see the prickle of hair at his shirt collar. His features were immobile, back poker straight, his dress fastidious – not unlike his father Oswald, perhaps. But Mosley’s shirt wasn’t black. It was pink, like his bottom after a sound beating.

Given the circus taking place in court 13, Mosley’s dogged stance was remarkable. The 68-year-old president of the Fédération Internationale de l’Automobile had come to sue the News of the World which, in March, used a camera concealed in a prostitute’s bra to film him and four other hookers in what the newspaper termed a “sick Nazi orgy” in a Chelsea basement flat.

Video footage (not for the sensitive, though 1.5m souls have watched it online) showed the girls in striped prisoner uniforms and Luftwaffe jackets; Mosley having his bottom shaved; a prison-style medical inspection for head lice; and canings counted out in German: “Eins! Zwei! Drei! Vier! Fünf!”

After five hours of seriously tough love, all caught on camera, Mosley relaxed with a cup of tea, a plaster gingerly applied to his bleeding posterior. Mosley claims gross invasion of his privacy and is seeking “exemplary damages”. Despite the seriousness of his claim, the atmosphere in court last week descended to an ’Allo ’Allo level toute de suite.

The thwack of leather on buttock, the scrape of razor on bum, the “sexy” bark of German – “she needs more of ze punishment!” – mingled with giggles from the assorted journalists, legal students and gawpers in the packed court pews.

It verged on farce. At one point Mosley had to confess: “I had never had lice-checking before but went with the flow.” Then a dominatrix (known only as Woman A) asked whether she should model one of the prison uniforms in the witness box for m’lud’s edification. Mr Justice Eady, the judge presiding over the case without a jury, declined the offer.

Even the prosecution got sucked into the camp of it all. “Ve are ze SS officers and you are zee Jews. Bend over!” mocked Mosley’s QC, James Price, when cross-examining Colin Myler, editor of the News of the World (which is owned by News Corporation, parent company of The Sunday Times), to nervous titters all round.

It would indeed be funny, if it weren’t so serious. Aside from whether the orgy had a Nazi theme (Mosley denies it, saying his party was merely based around a prison camp scenario) what is at stake is not one man’s right to pay a gaggle of girls to beat him up in private. It is, instead, the right to privacy versus freedom of expression, or clause eight versus clause 10 of the European Charter for Human Rights.

“If the judge finds in favour of Mosley it will be proof that this country has a privacy law in everything but name,” said Dan Tench, a partner at the legal firm Olswang and an expert in media law.

Given that no politician, let alone parliament as a whole has seriously pursued, let alone drafted, a law of privacy – even in the aftermath of the death of Diana, Princess of Wales – this is perturbing. Instead, what we have is “a law made on the hoof”, as Caroline Kean, a partner at Wiggin, a leading media law firm, put it. “In cases like these, a judge always ends up setting a precedent, with nothing in the way of government guidelines. For the past 10 years a privacy law has been unfolding an inch at a time.”

Many of those notable cases have been ruled on by Eady, who – past rulings suggest – is not keen on the fourth estate. As he presides over the Mosley trial, the tabloid tendency of the UK media feels rather like someone waiting for the cane to land. Will his judgment spell the end of kiss-and-tell? More importantly, might it add to the legal powers that public figures are increasingly using to prevent publication of material about themselves?

Britain has never had a law of privacy. However, in 2000 the Human Rights Act, based on the the European charter, came into force, including article eight, a right to respect for private and family life.

Two years later the television presenter Jamie Theakston used the new law to stop photographs of him with a prostitute being published by the Sunday People. As was to be the theme of such early cases, the resulting legal message was muddled. Though no pictures were allowed, the judge deemed the hooker had a right to sell her story under the freedom of expression enshrined in article 10 of the European charter. Further confusion ensued with the supermodel Naomi Campbell. In 2001, the Daily Mirror snapped her coming out of a Narcotics Anonymous meeting. After three years, and three trials, ending up in front of the law lords, Campbell claimed a narrow victory (three lords for, two against) on the basis that her drug problems were private. However, it was still thought to be acceptable to take pictures of her popping to the shops.

The law crept in further with a case from the German courts that, thanks to European law, has bearing in the UK. It ruled that Princess Caroline of Monacohad a right to privacy when going about her daily life, rather than official functions. In such circumstances even pictures of her in public places could not be published.

The press and legal professionals were left unsure exactly where the line on privacy was. “After the Campbell case it seemed clear the press were certainly allowed to document the banal activities of celebrities,” said Kean. “But after Princess Caroline we didn’t know where we were.”

The question was answered by a little-known Canadian folk singer called Loreena McKennitt. She chose a UK court to fight publication of a book by a former friend, with McKennitt claiming not that the contents of the book were untrue but that they infringed her privacy. With Eady once again in the hot seat, she won her case and the book was withdrawn. No matter if the content was true or not, the message was clear. The balance had tipped against freedom of expression.

The judgments, and the speed with which information is disseminated over the internet, have prompted more of the rich and famous to take preemptive action, simply on the suspicion that information about them might be published.

It is common now for newspapers to receive warnings or injunctions forbidding publication of material before anything has appeared. Though the internet has an anything-goes reputation, websites such as the irreverent, gossipy Popbitch are also regularly threatened with legal action.

One well-known television and radio presenter recently obtained an injunction preventing publication of material about his private life; it also went so far as to forbid any mention that the injunction existed.

In another case, ruled on by Eady, a prominent figure from the world of sport had an affair with another man’s wife. The man won a ruling that stopped the betrayed husband from naming the sports figure in the media. In effect, one person’s privacy was put above another person’s freedom of speech.

Back in court, Mosley’s rictus demeanour was beginning to fade.

A one-time barrister, he had the wary smile of a man who thought things were going his way.

The case turns on several issues, including how much of a public figure Mosley is, whether there is a “public interest” in knowing about his private life, and whether his S&M party had a Nazi theme as alleged.

Unlike his father Oswald, founder of the British Union of Fascists in 1932 and a friend of Hitler, Mosley firmly denied any Nazi sympathies. Instead, he told the court that German was spoken during his party because it “somehow sounds appropriate for a bossy dominant character. It is a harsh-sounding – rather than a romantic – language.” Woman B, who is German and rather proved Mosley’s point about “harsh-sounding” with her virtuoso performance during the caning, added: “I’m very upset and offended because it is an insult and offence if a newspaper equates German with being Nazi – my grand-parents were not members of that party.”

Outside the court, Mosley seemed to be winning the war of minds. Even if there was a Nazi element, a woman of 52 (who didn’t want to be named) told me she’d had enough of “the disgusting behaviour of the newspapers”. Do you think people generally have a higher tolerance for behaviour that used to qualify as immoral? “Oh yes,” she said. “I’m very liberal.” Not when it came to freedom of expression, though.

Mosley’s is considered to be the most explosive case since McKennitt’s. “It’s significant because Mosley has a different position to a Campbell or a McKennitt,” said Eric Barendt, professor of media law at University College London.

After a run of judgments establishing various parameters of what is “private”, Mosley is seeking punitive damages. Until now they have rarely exceeded four figures – Campbell, for example, got just £3,500. Some lawyers think that could change.

“It could even be said the damages awarded for an invasion of privacy should be greater than for defamation,” said Tench. “With the latter your reputation is restored. With privacy the bringing of the action simply exacerbates the grievance.”

Kean has no doubt the effect would be wide-ranging. “If he won a very large award it would have a very chilling effect on the press,” she said. “We’re already known as the libel capital of the world. We could become the privacy one too. Either newspapers would have to start suppressing stories or I’m going to be getting a lot of business.”

Certainly the long tradition – not always noble – of reputations splashed, trashed, andserved up witha red top’s eye for the prurient detail could ebb away if Mosley wins.

However, there would be other more disturbing implications, too, says Jo Glanville, editor of Index on Censorship. “It’s what will happen in the future that we really need to worry about,” she said. “If the News of the World loses, it will be more proof that we’ve ended up with a very serious law without any proper debate.”

Who’s to say, for example, if an influential public figure has a dubious private life, leaving their judgment open to question, whether it’s permissible to publish the fact?

As Glanville says: “It will make it more and more difficult to report on public figures even when their private lives are genuinely in the public interest. If Mosley wins, the rest of us will be living with the consequences long after the dominatrices have fled.”


If law relating to privacy increases, media organisations will have to stop publishing certain stories. It is far from clear where the line between privacy and public interest lies, as the following cases show.

The extremist Islamic preacher, recently released from jail, was photographed walking in the street as he returned from a shop. Qatada, who has been a supporter of Osama Bin Laden and lives in Britain on benefits, had claimed that such photographs were a breach of his right to privacy. Only a court challenge by two newspapers enabled the photographs to be published.

The prince kept a journal of his visit for the handover of Hong Kong in 1997 in which he recorded observations about its new rulers, the Chinese. He circulated the journal to friends and relatives. But when extracts appeared in a newspaper, he claimed a breach of confidence. The courts agreed. The newspaper tried to appeal to the House of Lords, but was refused permission.

In April 2006 it emerged that Prescott, then deputy prime minister, had had an affair with Tracey Temple, his diary secretary. Downing Street initially said that it was a “private matter”. Under tighter privacy laws would the affair have come to light at all?

— It is not just the media that may face problems. The police can also fall foul of privacy law.

In 2003 Stephen Perry, a convicted armed robber, won a claim for breach of privacy after being secretly filmed by police after he refused to attend an identity parade. Perry was awarded damages and legal costs.

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