William Rees-Mogg
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If we were concerned with American rather than European law, we might describe Mr Justice Eady's judgment in Mosley v Newsgroup Newspapers as the English equivalent of the Supreme Court case of Griswold v Connecticut in 1965. Both dealt with sex, both dealt with privacy. Both can be regarded as extensions of what the privacy law had been thought to be before the cases were tried.
The facts of Griswold were that the state of Connecticut had an ancient and virtually obsolete statute making it criminal to use contraceptives, inside or outside marriage. By 1965, after the invention of the contraceptive Pill, it had become an absurdity. Indeed the statute had never been enforced.
Some professors at Yale Law School decided to get rid of it and make a propaganda point, by taking it to the Supreme Court. The majority opinion was drafted by the influential liberal Justice William O. Douglas. He discovered a new basis for argument, the doctrine of a fundamental right of privacy, that could not be found in the US Constitution: “We deal with the right of privacy older than the Bill of Rights - older than our political parties, older than our school system... would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marital relationship.”
Douglas tended to let his judgments go over the top, at least verbally. He derived this right of privacy from the US Bill of Rights, where it is not to be found, just as the more cautious judge, Mr Justice Eady, legitimately derives his from the European Convention on Human Rights and Fundamental Freedoms.
Even Mr Justice Eady uses some quite romantic language. He says that there exists an enforceable duty of confidence, “because the law is concerned to prevent the violation of a citizen's autonomy, dignity and self-esteem”.
The Griswold ruling lacked the clarity or the logic necessary to make good law. However, it suited the taste of an activist Supreme Court, and provided a new right of privacy parallel, though subordinate, to the right of free speech in the First Amendment. In US law the First Amendment still has considerable force. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the government for a redress of grievances.”
That remains good law. However, the European convention did not put the rights that it created in any particular order - they have to jostle against each other in the light of the circumstances of individual cases. To a significant degree this interplay of rights depends on the discretion of judges, and English judges have not always been sympathetic to the exercise of press freedom.
In his judgment, Mr Justice Eady points out that there is a potential conflict between Articles 8 and 10 of the European convention. This is the Council of Europe convention that was incorporated into British law in 1998. Article 8 states that “everyone has the right to respect for his private and family life, his home and his correspondence”. Article 10 states that “everyone has the right to freedom of expression. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” There are obvious defects in these clauses that do not arise from the terms in which they were drafted.
Our privacy is being invaded by the world's security services in every second of every day, as a routine matter. Vast quantities of information are collected by commercial enterprises such as Google or Tesco. Against these invasions of our privacy we have little or no protection. However, the Mosley case was not concerned with these very important invasions of privacy but with the individual actions of the News of the World, which is owned by News International, the parent company of The Times.
It was, in my view, a pity that Max Mosley did not try to vindicate his character by bringing an action for defamation, rather than one for breach of confidence. In my view, he destroyed his own reputation by his actions. He argued that he was entitled to a duty of confidence from the women that he hired for sadomasochistic charades. Under modern law, he is not entitled to confidentiality from any solicitor or accountant who might advise him on a tax savings scheme that might not be approved by the Revenue. It seems absurd to argue that he should nevertheless be entitled to a higher degree of confidentiality from the women that he hired to play dominatrix roles in sadomasochistic ventures.
Judges are reluctant to accept that newspapers are one of the few remaining safeguards. Journalists more often than lawyers are the people who investigate the more disreputable areas of life. We have recently seen in some very painful cases involving the social services and the family courts that there is far too little exposure of serious injustices in cases that the press is not free to report. Any reduction of the ability of the press to investigate and to publish is likely to have serious consequences against the general welfare of society.
In his judgment, Mr Justice Eady followed a line that many English judges might also have followed. He was more worried about a breach of confidentiality than by the proceedings that were disclosed. He virtually abolished the “defence of inequity” that used to give some protection to the disclosure of scandalous but not criminal events. Mr Mosley's employment of prostitutes to indulge his masochistic fantasies was not criminal, but it was not reputable. It did not deserve the protection of the law.
William Rees-Mogg has had a distinguished career with The Times and The Sunday Times. He was Deputy Editor of The Sunday Times before becoming Editor of The Times in 1967, a position he held until 1981. He was made a life peer in 1988. Since 1992 he has been a columnist for The Times, writing on a variety of issues. He has also been chairman of the Broadcast Standards Council and British Arts Council
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The secrecy surrounding curupt family law courts is somewhat more crucial then this, what Mosely do's in his private life is for him don't think it has a bearing on Formula one or the starving in Africa! I also think after a famous person dies they should be left in peace no postumous kiss and tell!
Dave Farmer, Broxbourne, England
The press should be treated no differently from anyone else. Freedom of speech, yes. Libel, no. To restrict anyone's right to report the truth is a very slippery slope.
Peter Cressall, La Lucila, Argentina
It is absurd that a man's sexual preferences is worthy of news, obviously there is very little else to report for this reporter. I am glad about the court ruling, though i doubt that it will curb the silly journalists from carrying on reporting rubbish. who he has sex with is none of our business.
Kayode, Aberdeen, Scotland
of course we have the right to know facts about public figures, even such as mosely.
those who sit in judgement on others must be accountable, as logically their private acts influence their public thinking.
how can they not be?
john haydon rowe, javea,
Unsung, the press is our only effective watchdog. It does a mighty job. In the defence of liberty journalists have eclipsed judges, whose resentment of this and of press criticism unfits them to usurp parliament in creating a law of privacy. No right to privacy exists in nature -- judges stay away.
Tom, London, UK
Their is absolutely no justification for planting hidden cameras on a private premises to spy on adults indulging in consensual sexual activities.
Mike Freeman, Amsterdam, Nederland
If any of us could decide who deserved the protection of the Law, then it wouldn't be the Law at at all.
Robert, Hull, UK
People have a right to do whatever they like in private provided it's not doing anyone any harm. This trial was a waste of money and time.
SP, Bristol, UK
Bernard Levin rightly wrote that we have all done things we would not want publicised, but that if they are, we have only ourselves to blame. Free expression matters. I would abolish both the right to privacy and the law of libel. If a paper lies about you, get another paper to call them liars.
Richard Baron, London,
i really don't care what kind of consentual sex people are having, this is not only an invasion of privacy but a complete waste of time and money. is it so hard to find real news stories?
rudy, london,
Holy Mary, Mother of God, pray for us poor sinners now, and at the hour of our death.
margaret, near Preston, England
I hope the editors of this countries newspapers are taking notice of what the public are saying.
You are wrong, get off your soap box and stop hiding behind this poor arguement and start doing a job in reporting news.
Simon , Bristol, uk
The journalists were entitled to investigate this matter, and the results of this ruling would not compromise their ability to do so in future. But having completed their investigation and discovered nothing of legitimate public interest, it was quite wrong for them to publish their findings
Mike Scott, London, UK
Well I thought it was Outrageous, I would never have paid those prices.
Mike, Berlin,
Did Mosley do it in private? Yes
Was it legal? Yes
Did Mosley seek to make any personal gain out of it? No
Does it impact on Mosley's ability to do his job? No
There was absolutely no reason for the media to get involved with Mosley' s private and consensual sex life.
Craig, London,
Everyone in the UK is equal before the law and deserves the law's protection.
Not very long ago, people would have made the same argument about gays that you make about Mosley. The fact that something is scandalous does not mean that there is justification for invading privacy to expose it.
Rowan, Oxford,
Hang on! A grown man in private with consenting female companions? What you are proposing is that intrusion is the norm and acceptable. Is it not the truth that the press is now indiscriminate? This is not Profumo that we are discussing. There are no issues at stake other than taste, his not ours.
Malcolm Turner, Alsager, England
I think the real issue here is that journalists have been citing the freedom of the press to cover up for sloppy reporting, institutional bias and unfounded attacks on citizens character. I don't sympathise with Mosley, my sympathy lies with those who don't have the money to fight back.
Joseph Rogers, Warwick, UK
David from New York
You asked 4 questions. Answers are; No, Not relevant, Getting even less so as we progress, and you can work out the answer to the last for yourself
Avana Beach, London, UK
David from New York - Prostitution has never been illegal in the UK. No crime was committed.
Chris Davies, Sheffield, United Kingdom
Freedom of the press is a very important issue, a tenet of an advanced and equitable society. Mr Rees-Mogg is right to defend it. A shame less responsible journalists on the News Of the World are misguidedly prepared to risk that very freedom by parading juvenile prurience as morality or news.
Re're Tamarind, London, uk
Bill, nice article but you have your priorities all wrong. From looking at posts on several newspaper websites, most contributors are of the same mind. We are sick of the press dredging up and publishing scandal stories on people's personal lives. If it's in public and affects us of if not back off.
michael Pearson, Newcastle Upon Tyne, Uk
I'm a journalist on a national, indeed I've worked on this story, and I am glad Mosley won. This whole story was titillation rather than public interest, and the ruling should not affect a journalist researching then breaking a story of national interest.
Jay, London, UK
I disagree with the conclusion, and the rationale for the conclusion. I also don't see the connection with the rest of the piece.
The press at large has an obvious conflict in this matter.
By the by, re an above comment I believe that prostiution itself is not illegal in the UK.
Martin Thorpe, Sydney, Australia
It is amazing how jounalists hang together on affairs such as these no matter how obviously in the wrong they are. Your press abused its freedoms and is paying a fair price for that. You well know it was published for its potential to excite. And David in the States - no it wasn't illegal.
DW, Beijing, China
David from New York,
Prostitution and paying for sex has always been legal in the UK. Not in all forms though (such as streetwalking) and there are some associated illegal activites like pimping. But nobody is suggesting that Mosely commited a criminal act here.
paul, wuhu, China
Mr Rees-Mogg, I like your writings, but this time you are sadly mistaken. How would you like your sex life details, or that of your daughter, to be splashed on the front pages of the newpaper? There is no public interest in it at all, and that is why it should never have been published.
Steven, London, UK
I'm glad the judge ruled as he did. I am fed up reading about the initmate personal life of some poor non entities. IThats what we call porn.
If I want to be titllated, there is the top shelf of the newsagents available. In my newspapaers I want News.
derek robinson, york, uk
What complete nonsense! There is a huge difference between granting the press the freedom to investigate powerful institutions and letting them infiltrate individual citizens' bedrooms! This has to be the least convincing and least logical argument I've ever read from WRM.
David Space, London, UK
Have to disagree on this one. If journalists followed as strong an ethical code as they seem to impose upon those on the receiving end of their trash then they might get more sympathy. I'm glad Mosely won, what consenting adults do behind closed doors in nobody's business but their's.
Dan D, London,
Isn't prostitution still illegal in the UK?
How can any expectations of privacy over-rule a criminal act? Will there be any follow up from the authorities on his admission of the criminal act of hiring these prostitutes? if not why not?
David, New York, United States
Rubbish
marcoscu, Chorley, UK