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A “dangerous” precedent of which the victim is public morality; a ruling that
trivialises “unspeakable and indecent behaviour” that is “depraved, brutal
and repugnant”, thundered Lord Carey, the former Archbishop of Canterbury,
this week.
The recent High Court ruling on Max Mosley also “needlessly shackles the
press” and “removes the right of the public to make informed moral
judgments”, he added.
Lord Carey’s own judgment is pretty clear — and in line with much media
comment that has decried Mr Justice Eady’s ruling as the latest move in
building a privacy law that is strangling the freedom of the press by
stealth.
Meanwhile, to add insult to injury in their eyes, Mr Mosley plans to ask a
jury for thousands more in damages through a libel suit against the News of
the World (NoW) and possibly other media groups.
What do lawyers think of the decision that Mr Mosley had a “reasonable
expectation of privacy” in relation to his sexual activities — and that
there was no public interest in exposing the sado-masochistic orgy that a
powerful public figure had been involved in and enjoyed? And does it break
new ground?
First, the damages: the £60,000 was a record award by a court in a privacy
case and more than the previous highest of £50,000 awarded to Sara Cox, the
Radio 1 DJ, over nude photographs published of her and her husband on their
honeymoon.
Christina Michalos, a media law barrister, said the award was a “considerable
success” and set a new level for privacy claims. “Given that the judge
described the scale of distress and indignity in this case as ‘probably
unprecedented’, this suggests that £60,000 is now set as the higher end of
privacy damages. But we are not likely to see privacy damages reaching the
high level of libel damages which can be up to £250,000.”
The judge held back from awarding additional punitive or exemplary damages.
Such damages, the judge made clear, were inappropriate in privacy cases and
would have a “chilling effect”. In any case, he added, no amount of damages
could fully compensate the claimant for the damage done. Mr Mosley was
“hardly exaggerating when he says that his life was ruined”, the judge said.
So the media can reap some comfort from that decision. Rod Dadak, a partner
and head of defamation at the law firm Lewis Silkin, said: “For such a
blatant infringement the NoW can count themselves fortunate that they have
been let off the hook on damages.” The award could also have been higher, as
Dan Tench, media partner with Olswang, points out, had the judge not taken
account of Mosley’s own “reckless and self-destructive” behaviour in
continuing with the sex sessions, even after being given warning that he was
being watched.
Punitive damages or not, there is still the question of whether the ruling
will hamper legitimate investigative journalism — beyond “title tattle”
exposés of people’s sex lives. On this, lawyers — along with other
commentators — are split.
Mark Stephens, head of media at Finers Stephens Innocent, said: “Legally it is
not [a landmark]; but the judge has given the News of the World a caning in
the shape of £60,000 which is a record for an invasion of privacy and will
stop papers from running this kind of story — instead they will have to
focus on criminality, illegal immigration, and so on.”
More widely, it could damage investigative journalism. He said: “If you can’t
go under cover to obtain information about suspected iniquity, how can you
ever find it? This could have a significant chilling effect and the rich and
powerful will be able to use the law to protect themselves.”
Tench disagrees. The ruling would not “deter or impinge upon more serious
journalism”. The £60,000 award was the first “significant award” of damages
in such a case; but not “sufficient to bring about a major change of
approach by the tabloid press”. Readers of the News of the World, he says,
are “likely to be able to enjoy such revelations for some time to come”.
Similarly, Jennifer McDermott, media partner with Withers, said: “It cannot,
as the judge said, be seriously suggested that this case is likely to
inhibit serious investigative journalism into crime, wrongdoing and other
serious matters where there is a real public interest in ensuring that the
information is published.”
So why all the noise and fury? Even if the judge was just applying established
principles, as he insists (principles, it should be added, he has to some
extent created), he has clarified the rules of the game. It means that in
future, as Niri Shan, head of media at Taylor Wessing, puts it, that if the
media published such stories they did so “at their peril”. “An individual’s
private life, and in particular his or her sex life, is inherently private.
The media will have to have a robust public interest reason . . . to justify
publication.”
In other words, any intrusion must be demonstrably justifiable. Had the Nazi
theme been established, the NoW would have been home and dry. With a
politician, for instance, exposure of a sex life will now have to be on the
grounds that the behaviour jeopardised or impinged on their day job; or made
use of public money or property; or, in the case of other public figures,
exposed hypocrisy. The sex life of David Beckham may now be off limits — but
not if it jars with his publicly promoted face.
Each case will be judged on its merits and how the information was obtained
and then handled will be factors to be weighed in the balance.
Shan added: “The court has set a high hurdle for the media to jump over when
publishing stories about an individual’s personal and/or sex life. The media
will have to prove that the publication was, for example, to expose illegal
activity or to prevent the public from being significantly misled by
previous public claims made by the individual.”
Many would say that this is right — and support a law against such intrusions.
But they also say: why should the law be laid down by a judge?
Two misconceptions have clouded the waters of the Mosley judgment. The first
is that Mr Justice Eady is off on a frolic of his own and making law
Parliament did not want or intend. It is true that he is creating law in the
sense of ruling on cases that come before him. But in doing so, he is simply
applying a law that Parliament enacted when it enshrined the European
Convention on Human Rights into domestic law. That Act puts into statute a
right to privacy — which has to be balanced, in every individual case,
against the right to freedom of expression. The latter will trump privacy
only where it can be justified in the public interest.
The second — see Lord Carey — is that Mr Justice Eady has somehow condoned
what many see as disgusting behaviour. But he was at pains to emphasise that
people’s views are irrelevant. Whatever people think, he said, of the
“bondage, beating and domination which seem to be typical of S and M
behaviour”, there was no public interest for the intrusion on his (Mosley’s)
personal privacy. He added: “Anyone indulging in sexual activity is entitled
to a degree of privacy — especially if it is on private property and between
consenting adults (paid or unpaid).”
Nor should judges, as anyone else, be influenced by the behaviour involved. It
is not “for judges to make individual moral judgments or to be swayed by
personal distaste”. He adds: “Of course I accept that such behaviour is
viewed by some people with distaste and moral disapproval, but in the light
of modern rights-based jurisprudence that does not provide any justification
for the intrusion on the personal privacy of the claimant.”
Conversely, the NoW could not bolster its case — nor justify surveillance
methods — by the nature of the behaviour, he added. “There was no public
interest or other justification for the clandestine recording, for the
publication of the resulting information and still photographs, or for the
placing of the video extracts on the News of the World website — all of
which on a massive scale.”
It will take time to gauge the impact of the Mosley ruling. In the meantime,
both lawyers and the media are agreed on one thing: a right of privacy there
may now be — but in marginal or heavily contested cases, it is one that only
the rich and famous have the means to enjoy.
The legal editor's next column will appear on September 2
