Eady J was keen to point out that, strictly speaking, his judgment in Max Mosley’s case does not involve any radical development of the law:
It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles (para. 234 of the judgment).
In a sense, he’s right: to lawyers in this field there is indeed nothing new in the idea that it’s now possible to go to court to complain of a breach of privacy under the approach developed by Eady J himself at first instance, and approved by the Court of Appeal, in McKennitt v Ash, following Campbell v MGN in which the House of Lords recognised this new form of action. Nor is there anything new in the principles Eady J applied – just as he said. He asked first, whether Max Mosley had a reasonable expectation of privacy in the circumstances; he concluded that he did. And he asked, secondly, if, weighing the competing Convention rights to privacy on one hand and freedom of expression of the other, there is any countervailing public interest justifying the intrusion. He concluded that there wasn’t.
But in spite of this relative legal familiarity, at least to human rights and media law specialists, I think the case may announce to the general public the arrival of this relatively new privacy law more effectively than the Campbell case did. Perhaps it’s the timing; perhaps it’s the kinky sex. But I think this judgment may be taken general note of, and that people may realise this wasn’t a libel case, but a right to privacy case. It’s also interesting in itself for Eady J’s reasoning. Although much of the judgment is taken up with the question whether Max Mosley’s “party” had a Nazi element or theme to it (the judge found it didn’t), Eady J makes a number of judicial suggestions, assumptions and implications in his judgment that may contribute fruitfully to further development in this area.
The first thing worth saying is that at the first stage, when deciding if there is a reasonable expectation of privacy, Eady J states as a general principle that if you have sex with someone you can reasonably expect them to keep that, or at least the details of what you got up to with them, confidential. In that sense, to kiss and tell is to commit an “old-fashioned breach of confidence” as the judge put it, even if the Human Rights Act didn’t exist.
More controversially, though, Eady J holds that the fact you pay a prostitute makes no difference. I wonder if this principle is really sustainable, given the exploitation and danger to women involved in prostitution, and the way it feeds organised crime.
Thirdly, Eady J’s judgment is noticeably friendly towards kinky sex and the people who go in for it. Not only does he not see the fact that sex involves “S&M” as making any difference to his general principle about confidentiality (the judgment displays the usual hilarious judicial style when discussing thing like spanking, and Eady J delightfully refers to the ladies Mosley was friendly with as dominatrices – who says a knowledge of Latin’s old hat in law?). He almost goes as far as to suggest that the unwritten confidentiality code within the BDSM community adds something to a participant’s legal expectation of privacy. I say almost; he doesn’t quite say that in terms. But at paragraphs 105 and 106 I think his judgment is “visibly coloured” (to adapt a phrase he uses later in the judgment, when discussing the facts) by the idea.
What’s more, Eady J delivers a welcome judicial flogging to the famous House of Lords decision in Brown. Or perhaps a better metaphor would be to say that he ties it down very firmly to its own facts, insisting on “some sense of reality” in the face of the News of the World’s argument that Mosley’s spanking amounted to a criminal offence and should therefore be exposed. Of course what he says doesn’t it itself affect the authority of Brown. But I think it’s an important judicial comment that will help Brown on the way to being recognised as an anomalous case, fundamentally deciding there is some limit to the kinds of assault that can be legally justified by consent, a principle that is however only really relevant in fairly extreme cases. By the end of his judgment, Eady J makes the News of the World’s argument that spanking is depraved, immoral and criminal seem as old-fashioned as similar attitudes about homosexuality.
A last interesting point on law and sex: Eady J says at para. 122 that
It is probably right to acknowledge that private fantasies should not in themselves be subjected to legal scrutiny by the courts, but when they are acted out that is not necessarily so.
Again, I’m not sure this is really sustainable, unless qualified in relation to fantasies about children; I can see a legitimate place for the courts if people are barred from working with children on the basis of their sex fantasies. But it’s an interesting thought.
There’s lots more of interest in the judgment: Eady J says (para. 112) that newspapers can properly try to defend breaches of privacy using public interest arguments they only think of after publication; importantly, he floats – presumably for the benefit of the Court of Appeal, if it comes to consider this case or one like it – that perhaps courts should consider when balancing free speech against privacy the extent to which journalists acted responsibly; and he says that the extent to which someone like Max Mosley is exposed because of his own irresponsibility is relevant to assessing damages. Finally, he holds (after I think a rather confused discussion of whether the new breach of privacy action is a tort) that exemplary damages are not available in such a case.
So this is, if not a landmark in the strict sense of precedent, then at least an important further contribution by Eady J to the development of our law on privacy.
I’ve just one criticism of the analytical structure the courts are adopting: at stage 2, once a reasonable expectation of privacy has been established, when balancing free speech and privacy and deciding whether intrusion is justified the courts so far – and Eady J in this case – have tended to lose sight of the terms of article 8(2) and 10(2) and the need for the public interest question to be analysed specifically in those terms, so that courts consciously decide, for instance, whether a newspaper story is justified for the prevention of crime or the protection of morals, or whether ruling it in breach of privacy is justified for the protection of the reputation or rights of others. I think at the moment under Eady J’s “new methodology”, the courts have shown a tendency to forget this framework and talk in rather loose ways about balancing rights, jumping prematurely to a consideration of proportionality alone.
Thanks for taking the time and trouble to post. Very interesting. Much appreciated.
Thank you for this excellent analysis. Your comments about EadyJ’s judgement being “remarkably friendly” to BDSM practitioners rings true: in the community itself they are positively ecstatic about the judgement, as though it has given legitimacy to their lifestyle and protection to their privacy for the first time. See this interesting comment, for example.
Head of Legal – If I may say so you have given a good summary of this case. That there was a “breach of confidence” is a “no-brainer” but, with respect, I think that Eady J got is badly wrong when considering whether there was a countervailing public interest justifying the intrusion. As you have said, the precise terms of Articles 8 and 10 need to receive greater attention.
Re the case of Brown – the old Hart-Devlin debate still runs on!! Until the Human Rights Act 1998 the judges always seemed to be mostly on the side of Devlin but there is now a distinct movement toward Hart and the views of Devlin are being made to look positively medieval. Nevertheless, the law needs to be careful since it seems to be developing an “anything goes” stance in relation to morality or what many of us would argue “lack of morality.”
Peter, what interest should the courts have in the morality or otherwise of an activity if the activity is not unlawful?
@ukliberty – My reference to the Hart-Devlin debate is to the historic debate as to the role (if any) which the law should play in relation to morals. Many students of jurisprudence argue that there has to be some link between morality and the law. A reading of the German writer Gustav Radbruch demonstrates well the consequences if there is no link between law and morality. As I said above, the courts have now undoubtedly moved to the position advocated by Hart. If you look closely at the wording of the European Convention on Human Rights there are several references to matters such as whether publication is necessary for the protection of morals etc. This is the point Head of Legal makes when he says that the courts are tending to “skip” over the framework of the convention itself. More detailed attention to the words of the convention itself is definitely required.
Thank you Peter. That’s certainly a fair point about “the protection of… morals” as in Articles 9 and 10.
I confess I’m completely ignorant of Gustav Radbruch and the Hart and Devlin debate so I will educate myself.
What I’m struggling to understand in particular is how our morals are protected by publicising the details of supposedly “depraved” but private sexual activities.
sorry, not 9 and 10 but 8 and 10 in this case.
@ukliberty – English law has certainly moved away from criminalising “private conduct” provided that the “conduct” is consensual between adults. However, an offence of conspiracy to corrupt public morals or to outrage public decency” appears to still exist – Shaw v DPP [1962] AC 220 and also R v Gibson [1990] 2 QB 619 and see Knuller v DPP [1973] AC 439. The Shaw case concerned the publication of a “Ladies Directory” which advertised the “services” some ladies were prepared to offer! It all has a somewhat antiquated look about it today but the 1960s were when the Hart-Devlin debate was taking place and the senior judiciary were much more concerned with morality than they are today. Lord Devlin was of course a Lord of appeal in Ordinary until he resigned getting fed up with all the tax cases !!
Peter, those are two distinct offences: the common law offence of outraging public decency, as in Gibson and Knuller, exists (as of 2007, anyway) and appears to be over three hundred years old; the offence of conspiracy to corrupt public morals, as in Shaw, seems rather contentious as it was invented by the courts after the fact, which seems to violate the principle of no punishment without law.
Incidentally the CPS seems keen that prosecutors carefully consider alternative charges.
I take your point that the courts have an interest in our morals particularly bearing in mind Articles 8(2) and 10(2), but note that any infringements on our rights must be “prescribed by law” and “necessary in a democratic society”. But on what other basis should they be interested? Their power seems rather broad after all.
On the other hand I can’t complain in the general case about Parliament saying a particular activity (such as flashing or publishing contact details for prostitutes) is henceforth illegal. That would seem “fair enough”.
I don’t understand your concern about an “anything goes” stance or “lack of morality” in relation to acts conducted in private, in relation to public morals at least. With regard to the Mosley case, he tried to keep his shenanigans private and it was the News of the World that publicised his activities, so it seems to me that if anyone should be charged with outraging public decency (for example) it should be those people at the newspaper! 😉
@ukliberty – thanks, you are right in saying that there are two offences – my wording was rather loose in the earlier post!!
I think we both agree with Head of Legal that greater attention should be paid to the precise terms of the articles in the European Convention.
My only reason for even mentioning Hart-Devlin; Shaw v DPP etc. was to try to illustrate how far the law has moved away from concern with private sexual matters. At one time it was argued that the law should intervene since protection of the moral fabric of society was said to be the law’s business.
Today, legal intervention is more appropriately targeted at areas where it is needed such as protection of children and other vulnerable people etc. Thus, the right to privacy might have to give way where the conduct involves the young etc. and the press would presumably be successful in exposing such conduct. However, the private sexual mores of the consenting adult population are no longer the law’s business.
Peter, thanks for your comment. I think I have a problem here, in that because of my ignorance of the issues you raised (Hart-Devlin etc) I arrived at an erroneous conclusion about what you were saying.
I think I need to read more!