Gosh, what a legal week this has been! In all the flurry, I’ve not yet posted the judgment in which Eady J refused Max Mosley an injunction against the News of the World. Paragraph 4 of the judgment describes the video at issue in the hilariously neutral terms typical of the judiciary:
I was given a copy of the edited footage… It is very brief, containing shots of Mr Mosley taking part in sexual activities… and it also covers the tea break… The session seems to have been devoted mainly to activities which were conveniently described as “S and M”… The very brief extracts which I was shown seemed to consist mainly of people spanking each other’s bottoms.
Yes, quite. Actually there are some serious issues here, though. I’m not sure, myself, whether it’s really right to see using prostitutes as part of your private life – but leave that to one side. The judge accepts that the paper, by publishing this video on its website, intrudes into Mosley’s private life, and demeans him, yet he refuses an injunction, when balancing his article 8 rights against the paper’s freedom of expression, because the video is so widely available (eg on YouTube) that the exercise would be futile.
Mm. If this is the respect people’s private lives get, then is article 8 of any value, really, against a national newspaper? Can’t it circumvent the law easily simply by distributing copies in advance of its own publication? And how does this attitude to the rule of law fit with the judicial implacability in the face of those who’d circumvent justice, in yesterday’s Corner House case? It certainly would have served a purpose for the judge to deny News Group the ability to attract visitors to its website using this video, even if they can see it elsewhere.
Moseley’s a big boy now (or so the girls keep telling me) and he ought to have been more circumspect. But I also think that it will have suited Ecclestone’s book for the story to come out.
As to the power of the Internet, yes, I think we are observing a sea-change. I’m not convinced that existing legislation can encompass such an international phenomenon. There are similarities to off-shore banking.
Well, if the News of the World or its affiliates had distributed the video separately, then perhaps this would be a different matter.
Surely the availability of videos/articles on the web extra to publication with a reputation-smearing agenda will not defeat an article 8 right against the media prima facie? If the claimant can prove that the tabloid deliberately published damning material in another, unrelated place (youtube say), prior to publication of the scoop in order to defeat any privacy claim, then that will only go to strenghen any article 8 arguments? Eady wasn’t denying that Mosley was entitled for his private life to be kept private, but was being pragmatic in that the material was already widely available. Prior restraint against the media must be on the most deserving of terms (even if the claimant may not “deserve” it).
The problem with the internet having become a participatory medium, with regards to newspapers publishing material, is the very real possiblity that they will stick videos up on youtube first in order to defeat any possible claim of right to privacy. When that happens on a more widespread basis(and I’m sure it already does to some extent), then the law is going to be in a tight spot. The claimant is going to need to show not just that what is being published in the paper breaches art 8, but that the paper has pre-published/distributed the same material on the web in anticipation of any claim. It’s not hard to track ip addresses and such, the problem will be proving who submitted the offending material. The judge has often got very little time to rule on an injunction against publication.
If the media does try to circumvent the law on a mass scale through the internet then the answer is going to have to be to fight technology with technology, and perhaps include more co-operation and regulation of sites like youtube.
There is also the issue of a media culture of “name and shame”. I personally don’t care where max mosley sticks it, and I would rather read about something more important than what he gets up to in the bedroom, whether he pays for it or not. Unfortunately the print media seem to think that this is a big issue, and do not care about reputation- not just with mosley but at all. The tabloid print media need much tougher sanctions, and then maybe their free speech will be of a higher quality.