Original URL: http://www.theregister.co.uk/2008/07/24/mosley_privacy/

Cheque-red flag for Max Mosley

News of the World organises whip-round to pay damages

By Jane Fae Ozimek

Posted in Law, 24th July 2008 11:39 GMT

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!

Privates on Parade

This would appear to add weight to the oft-cited PCC maxim, that “what interests the public is not necessarily the same as the public interest”.

Despite much-hyped fears expressed in some sections of the press, this is not a license for politicians to do whatever they please and remain immune from investigation. Rather, it states that individuals who have a public role nonetheless retain a right to privacy unless their behaviour directly impacts on the political and social life of the community.

Over in the world of bondage, dominance and sado-masochism (BDSM), individuals may be breaking out the champagne a little prematurely. Insofar as this decision reinforces the rights of individuals to privacy, it makes it that much less likely that some tabloid may intrude on your weekend partying just because what you get up to is seriously salacious.

But as one activist rather sourly commented: “It does not change the fact that you can legally beat someone senseless in the boxing ring or hurl them to the ground in a rugby match: but inflict any harm that is more than transient or trifling in a sexual context and you will be done for assault.

“Nor does it change the fact that you can quite legally watch footage of real crime, real executions, and the most horrendous brutality on the internet: but dare to view a mock-up of certain acts taking place between consenting adults in a sexual context, and you can go to jail for three years.”

There is, too, another fly in the ointment. Readers may be familiar with recent legislation on extreme porn, but they may be less familiar with a clause inserted at the last minute into the Safeguarding Vulnerable Groups Act 2006. This states that individuals may be barred from working with children or vulnerable groups if they possess “sexually explicit images depicting violence against human beings”.

Again that sex thing: a psychotherapist could have a field day with the present cabinet. Already, however, we have some evidence of people being asked in job interviews about what type of pornography they look at.

The net effect of legislation and court action means that whilst the conduct of public figures may now be at least partially protected, any individual subject to vetting could in future find their sexuality "legitimately" plastered across the tabloids for this very reason. El Reg reckons that despite government re-assurances, the true vetting figure could be between 14 and 16 million adults.

Bootnote

El Reg’s own legal friend notes that in setting out the NOTW’s case, Mark Warby QC claimed that sadomasochistic cruelty is contrary to civilised values and “corrupting of those involved”. But as our learned friend points out, Warby must be aware of the text of the Obscene Publications Act 1959, which makes it an offence to publish material with a tendency to “deprave and corrupt” those who view it.

Since the NOTW claims that the article illustrates corrupting practices, this must surely lay it open to a prosecution for that offence. Something of an own goal on their part? Attempts to draw this matter to the attention of the Met failed as a very nice call centre person confessed that she had never heard of the OPA, and despite her faithful promise to get a supervisor to call us back, they never did. ®