Friday, July 25, 2008

Mosley's privacy win in English courts

It's a busy week for privacy cases in the English courts. The media has widely reported on the case of Max Mosley, the Grand Prix boss, who has successfully sued the News of the World. The publication placed a hidden camera in a private residence and filmed Mosley in an intimate encounter. The paper suggested that he participated in a sadomasochistic orgy that attempted to recreate a Nazi death camp atmosphere.

In seeking to protect his privacy, the whole event has been thrown into the public arena. And consistent with other privacy cases, the quantum of damages is surprisingly low given the impact that this has had on Mosley.

The decision can be found here.

From the New York Times:

British Judge Rules Tabloid Report Tying Grand Prix Boss to ‘Orgy’ Violated Privacy -

LONDON — In a ruling with potentially wide implications for press freedom in Britain, a judge ruled Thursday that a tabloid newspaper breached the privacy of Max Mosley, the overseer of grand prix motor racing, when it published an article in March claiming that he had participated in a sadomasochistic “orgy” with a Nazi theme.

The judge, Sir David Eady, awarded Mr. Mosley, 68, damages equivalent to about $120,000 and legal costs estimated to be at least $850,000 in his lawsuit against The News of the World.

The ruling upheld the central arguments by Mr. Mosley and his lawyers: that there had been no Nazi theme to the five-hour sex session in an apartment in the Chelsea district of London that was secretly filmed by the newspaper, and no issue of public interest in its decision to splash the article on its front page and post video on its Web site.

“I found that there was no evidence that the gathering of March 28, 2008, was intended to be an enactment of Nazi behavior or adoption of any of its attitudes,” the judge wrote.

He added that Mr. Mosley had a “reasonable expectation” of privacy for sexual activities that took place on private premises and that did not involve violations of the criminal law.

“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 Web site — all of this on a massive scale,” the judge said.

But he denied Mr. Mosley the “punitive damages” he had sought, which could have amounted to millions of dollars. The damage done to Mr. Mosley’s reputation by “the embarrassing personal information” disclosed by the newspaper “cannot be mitigated by simply adding a few noughts to the number first thought of,” the judge said.

Outside the court, Mr. Mosley said he was delighted with the ruling, which he described as “devastating” to The News of the World.

“It demonstrates that their Nazi lie was completely invented and had no justification,” he said. “It also shows that they had no right to go into private premises and take pictures and film of adults engaged in activities which are no one’s business but those of the people concerned.”

The ruling was one of several by Justice Eady and other judges in recent years in privacy cases against British newspapers under a provision of the European Convention on Human Rights. Some legal experts say the rulings have shifted the balance in Britain in favor of celebrity plaintiffs and against newspapers and other media organizations in invasion-of-privacy cases.

Justice Eady, in his finding, said his ruling should not be considered “a landmark case,” but rather “the application to rather unusual facts” in the Mosley case of privacy principles that had been developing in British court judgments in recent years. Still, the ruling caused a stir among lawyers fighting for press freedoms, some of whom said it was a bellwether for a new, more restrictive era of news media coverage of people in the public domain.

Other lawyers cautioned against alarmism, saying British courts would continue to weigh two competing provisions in the European rights convention — Article 8, establishing a right of privacy, and Article 10, protecting press freedoms — and that it was too early to know where the lasting balance would be struck.

“One lesson it teaches is that public figures can have a private life,” said Desmond Browne, a barrister who has represented some of the plaintiffs in headline-making privacy cases.

Editors of some of Britain’s more serious newspapers also were wary about drawing instant conclusions about where press law in Britain was headed.

Roger Alton, editor of The Independent, a newspaper known for the rigor of its investigative journalism, said he was not too troubled by the ruling.

“It’ll affect kiss-and-tell stories,” Mr. Alton told the British Broadcasting Corporation. “But it’s not a landmark. It’s not going to set things up in a completely different way.”

But Colin Myler, editor of The News of the World, said the judgment was based on precedents established by “judges in Strasbourg,” seat of the European Court of Human Rights, and that the issues involved had never been addressed by Britain’s Parliament. “As a result, our media are being strangled by stealth,” he said.

For Mr. Mosley, success in the case represented at least a partial vindication of what amounted to a gamble. Rather than resigning in shame, as have many well-known figures caught in sex scandals, Mr. Mosley chose another route. He admitted to a passion for sadomasochism, which he told the court had continued for 45 years, and discussed, from the witness box, details of what had occurred in the Chelsea apartment.

But the aspect of the article that he, and many of his detractors in the world of motor racing and beyond, considered the most damaging was the claim that the session involved a conscious effort to recreate the atmosphere of a Nazi death camp.

The potential damage to Mr. Mosley was linked, inevitably, to the fact that he is the son of Sir Oswald Mosley, leader of Britain’s National Union of Fascists in the 1930s, whose secret marriage to Mr. Mosley’s mother, Diana, took place at the home of the Nazi propaganda chief Joseph Goebbels in 1936, with Hitler as guest of honor.

In court, lawyers for The News of the World said they based their claim of a Nazi theme, in part, on the use of commands in guttural German or German-accented English by Mr. Mosley and the women involved. But Mr. Mosley and four of the five women involved maintained that what they intended in their role-playing was to recreate a generic prison scene, not a Nazi death camp.

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