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Cheque-red flag for Max Mosley

News of the World organises whip-round to pay damages

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So the dust has settled, Max Mosley has won his case, and UK privacy law advances a further notch. Does this make any difference at all to the El Reg readers – apart from those few who get their jollies from dressing up in strange uniforms and whipping one another at the weekend?

The answer, as with most things legal, was probably, almost certainly, maybe yes.

Let’s start with some background. Earlier this year, the News of the World reported that Max Mosley, President of the Federation Internationale de l’Automobile, enjoyed nothing better than to get together at the weekend with fellow sado-masochists – or “hookers” as the NOTW described them - and to engage in a little light spanking.

Spice was added to an already salty tale with the allegation that one such party involved Mosley dressing up as a Nazi and re-enacting scenes from life in a concentration camp. If true, it would be an example of extreme journalistic serendipity, that the son of the one-time leader of the British Fascist tendency should get his kicks in this way.

Unfortunately for the NOTW, Mr Mosley then diverted from the approved script. He did not deny the central charges. But neither did he fall on his sword, express shame, regret, or any similarly clichéd emotion, or skulk off into hiding, thus enabling his accusers to claim a moral victory. He also flatly denied the Nazi element.

Instead, he reached for his lawyers. In France, he started a still incomplete libel action. In the UK, he began an action citing Article 8 of the Human Rights Act 1998 (HRA) - "Right to respect for private and family life". In its defence NOTW cites Article 10 - "Freedom of expression".

Two rights make a...

The working out of what lawyers refer to as the “parallel analysis” – i.e., reconciling two apparently irreconcilable sets of rights – is likely to have profound effects for all of us.

Although the Press Complaints Commission Code makes much of respect for privacy, there is not actually any such right in English Law. Nor is there any specific law on privacy. Successive governments have raised their heads over the parapet, noted that only grief lay on the other side, and backed off from new legislation on the subject.

However, since the passage of the HRA, there has been a gradually emerging tort – grounds for civil action – of “Breach of Confidence”, otherwise known as “Breach of Privacy”. Critics of this process object to the idea of “judge-made law – although in practice that is how a great deal of English Law has been made.

More serious is the charge that this law is developing on the back of a number of atypical, high profile celeb cases: for instance, the now oft-cited Naomi Campbell vs. MGN.

So to what extent is what Max Mosley gets up to in private, private? According to Justice Eady, who gave his verdict in this case today: "the Claimant had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property. I found that there was no evidence that the gathering on 28 March 2008 was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes.

"Nor was it in fact. I see no genuine basis at all for the suggestion that the participants mocked the victims of the Holocaust."

Oh: and £60,000 in damages, please. Next!

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