On Thursday at 10am, Max Mosley descended the steps of the Royal Courts of
Justice in central London to face the mob he had come to abhor. After what
had just occurred in Court 13, it’s fair to say the mob wasn’t too keen on
him either. The gathered reporters waited stonily for Mosley’s address.
Mosley was a little shaky, his normally stoic features faltering under the
crowd’s glare. “I am delighted with that judgment,” said the 68-year-old
head of the FIA, the governing body of world motor sport. “[It] is
devastating for the News of the World.”
It was the final day of a grip-ping three-week trial, in which Mosley took on
the press - and won. On March 30, the News of the World had run their
sensational revelations that the head of Formula One, the richest sport on
earth, had engaged in a sadomasochistic orgy with five professional
dominatrices in a Chelsea flat.
Having paid one of the girls to film proceedings, the paper had footage of
Mosley’s bottom being shaved, thwacked till it bled, his ears inspected for
lice by girls dressed in prison uniforms and a Luftwaffe jacket, barking out
commands in comedy German accents.
Though details of the sex veered from the farcical (cups of tea and banal
chitchat afterwards) to the stomach-churning (15 full-force pelts to the
buttocks), in his ruling Mr Justice Eady pushed questions of sexual morality
aside and found the public had no right to know about it. He then awarded
Mosley a record £60,000 in compensation.
Thanks to a creeping privacy law, many in the legal profession predicted this
outcome when the News of the World’s star witness - the dominatrix who had
filmed the orgy, known in court as Woman E - was unable to take the stand to
offer proof that Mosley had requested from her a specifically Nazi theme to
his five-hour spankathon. On Friday she went public with a denial there were
any Nazi overtones, saying that she was “sorry for everything that has
happened”.
Without the Nazi element, it was ruled the events stood outside the public
interest. That Mosley is an international figurehead and elected official no
longer provided the press with a protective umbrella to report on the (very)
dark side of what Eady deemed his “private” life.
Next morning the headlines hit hard: “Freedom Gets a Spanking” scoffed the
front page of The Sun, above a piece that caught the mood of the press. One
man’s right to keep his bleeding bum private - it was said - could not only
spell the end of the kiss-and-tell, which some might think was no bad thing,
but also place serious newspaper investigations in jeopardy. Yet Eady
himself said that his ruling should not be seen as a “landmark” decision.
What is the truth?
At the heart of the dispute is the interpretation of two clauses of the
European Convention on Human Rights, which was given added weight in the UK
by the 1998 Human Rights Act. Article 8 allows for the right of the
individual to a reasonable level of privacy; article 10 enshrines freedom of
expression. The conflict between the two, as decided by judges such as Eady,
is what has caused the confusion.
“The trouble is that the Human Rights Act isn’t a computer program,” said
Shami Chakrabarti, director of the human rights organisation Liberty. “All
it tells you is that a proportionate right to privacy is necessary and that
the same applies to freedom of speech. But it’s common law, so it’s
incremental and not always completely consistent.”
Godwin Busuttil, a media law barrister, points out this means that every case
is “fundamentally fact sensitive” and will turn on whether the judge decides
that the means of gaining information is justified in serving the wider
public interest.
Where does this leave us? Does Amy Winehouse, a one-time role model, have the
right to keep her drug troubles private? Should Mark Oaten, who was trying
to win the Lib Dem leadership when he was exposed for using rent boys, have
a right to campaign as an easy-going family man?
In his summation, Eady said: “Would it justify installing a camera in
someone’s home, for example, in order to catch him smoking a spliff? Surely
not.”
But what if the pothead were a celebrity who traded on their squeaky clean
image? Or a politician who had a voting record tough on the war on drugs?
“The press do have grounds for worry,” said Chakrabarti. “It’s not hard to see
why, even after the Mosley ruling, some feel there is a lack of clarity in
the law.”
However, beyond questions of clarity, there is also the matter of truth. Aside
from the allegation his orgy was Nazi-themed, a suggestion that Eady firmly
quashed, Mosley did not dispute the nature of his hard-core S&M party.
Colin Myler, editor of the News of the World, which is owned by News
International, parent company of The Sunday Times, finds himself in the
position of all editors: not judging a story on its veracity, but on its
acceptability.
“Newspapers surely have the absolute right to challenge and expose double
standards of elected leaders and [others] in public life,” he said. “If they
have a dark sexual secret life, should readers not have the opportunity to
know? I believe if it’s lawful and legitimate and in the public interest
then we should publish it.
“But privacy, as it currently stands, has been creeping along at an incredible
pace and, in my view, goes way beyond what article 8 of the Human Rights Act
was actually intended for. Our press now is being strangled by stealth.”
That said, he doesn’t think the verdict will drastically alter the way he and
his peers ply their trade. “If you are asking me, ‘Is it the end of the
kiss-and-tell for newspapers?’, then I don’t think the answer’s ‘Yes’.”
Caroline Kean, a high-profile media lawyer who is representing Grazia magazine
in a dispute with Victoria Beckham, agreed that the press is yet to be
seriously cuffed.
“I think [the Mosley ruling] is good news for the media. Here was a case where
the judge ruled without a doubt it was a very embarrassing set of
circumstances, that a man’s life had been ruined, but he set damages at
£60,000. If that is the level that is payable in an extreme case such as
this, others will likely receive much, much less. Is someone really going to
risk bringing a case when, in all likelihood, they’d walk away with less
than £5,000 even if they win?”
She points to the case of actress Sienna Miller, who is seeking damages from
The Sun and the News of the World for publishing photographs of her with her
new boyfriend in Italy. “She was on a beach in full public view where she
knows she is likely to get [photographed]. Even if she won, can she really
expect to see a large payment like Mosley’s?” said Kean.
This, of course, sidesteps the issue that the law is now on the celebrity’s
side, to say nothing of the possible £1m legal bill a newspaper can face if
it has to go to trial. It’s ludicrous to suppose editors won’t think twice
about publishing their hot splash if it could come with a seven-figure price
tag.
However, rare is the powerful public figure who wishes to go to court. The
prepublication threat of legal action is now the preferred method of
squashing a story. The concern isn’t just that newspapers won’t risk
publishing, or that they might get sued if they do, it’s the stories that
you - the reader - will never hear about.
This is where the danger to investigative journalism lies. It is standard
practice to contact the subject of a story before the article goes to press
to put any allegations to them. In the new climate, the subject of an
investigation when contacted could complain to a judge that his or her
privacy has been breached and stop publication.
The privacy laws have ushered in a new breed of story-killing injunctions.
Some are so stern it is illegal to tell you that they even exist. Notable
recent examples include a current affairs presenter with a complicated love
life and an adulterous sports personality whose mistress’s husband was
refused the right to tell his story.
IT’S a rough irony that privacy laws have arrived in the era of the online
information explosion. You only need to log on to American gossip Perez
Hilton’s blog for, say, the latest details on former Democratic presidential
candidate John Edwards’s love child.
Cases now brewing include J K Rowling’s battle with Big Pictures, a paparazzi
agency, over taking pictures of her children when she is out in public.
Gideon Benaim of the media law firm Schillings is representing her. “It
isn’t that J K Rowling is a recluse,” he said, “it’s about her wanting to
have her children to have a normal family life. She’s fought hard for that.
She doesn’t use them in her public life, taking them to premieres or using
them in photoshoots.”
The same, arguably, cannot be said of Victoria Beckham –a woman who included
her children in her recent Spice Girls tour and has been happy to discuss
the size of her husband’s manhood in interviews. Nevertheless, she is
seeking to use privacy laws against Grazia magazine, which reported that she
worries when David spends nights on the tiles without her. It smacks of a
pick’n’mix attitude to fame designed to drive editors spare.
Mosley has announced he plans to sue the News of the World again, for libel.
He is also suing the German newspaper Bild for €1.5m (£1.2m) over breach of
trust, violations of copyright law and fraud because it paid for the News of
the World’s video and photos. Then he will possibly take further action in
France.
If Mosley wins such a high amount overseas, the nature of European human
rights law means that the case could have a bearing on future cases in the
UK. Having escaped with a sore bottom, Mosley could spank the fourth estate
again.
Additional reporting by Dipesh Gadher
THE NEXT CLAIMANTS
A number of celebrities are involved in privacy actions against newspapers and
photographic agencies that will test the state of the law in the aftermath
of the Mosley case
Sienna Miller has launched a legal battle against the Sun and News of
the World newspaper and the Big Pictures agency for photographs taken of the
actress and her boyfriend Balthazar Getty on an Italian beach
Victoria Beckham, aka Posh Spice, is suing Grazia, the women’s
magazine. The story said she had phoned her husband David to express her
concern about him going out in Los Angeles on his own because she worries
about his safety
JK Rowling, the Harry Potter author, is in a protracted dispute with
Big Pictures over images of her son which were published in the Sunday
Express. She says that he has a right to privacy because she had never
exposed him to publicity
