Had Max Mosley descended those steps in Chelsea to pursue le vice anglais in the company of half a dozen French maids murmuring sweet nothings — rather than barking orders in German — it might all have been put down to a bit of a giggle. As it was, the alleged link to Nazism put it in the grey area of the law where public interest is conflict with the right to privacy.

That conflict is the topic of this year’s Times Law Awards, sponsored by One Essex Court: Should people in the public eye have a right to privacy? Entrants, who must be students, law trainees or pupils, are invited to submit an essay of up to 1,000 words analysing the issues and suggesting a way forward.

At stake are two conflicting principles: first, Article 8 of the European Convention on Human Rights, which says that everyone has “the right to respect for his private and family life, his home and his correspondence”. On this basis, Max Mosley, the president of the Fédération Internationale de l’Automobile (FIA), was entitled to claim his rights were abused.

But that ignores Article 10 of the same Act that states that everyone has the right to freedom of expression. Hannah Brown, barrister with One Essex Court, points out that the exercise of these freedoms “carries with it duties and responsibilities and may be subject to conditions and restrictions; for example, in the interests of the protection of the reputation or rights of others”.

So Article 8 emerged the winner. But, as Brown says, it was an outcome determined by the particular facts of the case. What swung it Mosley’s way? In short, because the News of the World’s case that there was a political/Nazi element to the story justifying Mosley’s exposure found no favour with the judge on the facts. Mr Justice Eady indicated that he might have ruled differently had he been satisfied that there was a Nazi theme to the “party”. Many might well say that in such a case, Mosley’s behaviour called into question his suitability as FIA president, such that it was in the public interest to reveal it.

Even then, would publication of the video on the internet have been a step too far? The judge disagreed that the alleged immoral nature of the S&M activities was itself a matter of genuine public interest.

But what if Mosley had been a bishop? The “fact-specific” weighing of competing interests is at the ruling’s heart, Brown says. “This judge was not persuaded that there was any legitimate public interest to justify either the secret filming or the publication of the ‘party’. He was rightly at pains to emphasise that the weighing-up exercise must be an objective one.”

So what now for tabloid exposés of the goings-on of celebrities, politicians or others in the public eye? How can the media know where safely to tread? The privacy/right-to-know debate goes wider than the activities of public figures to the justice system itself. Many family courts operate in private. But, subject to children’s anonymity being protected, there is a compelling case for more hearings to be in public — if only to show justice being done and answer critics.

Then there are the criminal courts. Ministers have taken emergency laws to ensure the anonymity of witnesses after the law lords expressed concern over the widespread use of orders to protect the identity of witnesses otherwise fearful of reprisals. Here, the right of defendants to know who is accusing them, and of the public to see justice done, is weighed against the administration of justice and the aim to secure convictions. There is a strong case that justice must be administered in public; but others argue that ensuring justice is done in the first place is more important. Should the “right to know” be the price?

In all this, judges are often the arbiters. The public may feel that a ruling was influenced by his or her age, class and views. Would a Jewish judge have decided the Mosley case differently? Journalists must try to conduct their own balancing exercise, in the hope that a judge will agree.

So who should be the arbiters of this right to privacy and what falls within the “public interest” defence? Is a new framework needed to guide judges and journalists in this embryo minefield? We await your answers.

HOW TO ENTER

Entries are now closed.

Prizes: First, £3,500; second: £2,500; third, £1,500. Three runners-up: £1,000 each. The results will be announced at an awards dinner next spring.

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