Max Mosley appeared before the Culture, Media and Sport Committee yesterday to talk about the exposure of his private life by the News of the World last year, his successful privacy action and the law on privacy generally.
Mosley argued that newspapers should be required, before publishing stories like his, to contact the subject of the planned revelations before publication; he says it’s essential people have a right to challenge disclosure in advance because no post-publication remedy can possibly give sufficient compensation. Once privacy is lost, it’s lost for ever. There’s no putting the egg back together.
I think he’s right. A great deal of rubbish has been talked since the Mosley judgment, a large percentage of it by Paul Dacre. We now have privacy law, yes, not one brought in by the back door, but one openly voted in by Parliament in the Human Rights Act. This privacy law does not constrain investigations into wrongdoing, or into any behaviour that there is a genuine public interest in exposing; what it does constrain is simple intrusion into people’s sex lives for fun and titillation.
My concern from the start has been the way the press can avoid legal constraints, even by leaking a story in advance of publication, and that Eady J’s judgment was if anything too friendly to the press. The level of damages and costs Eady J awarded in the Mosley case is not enough to deter newspapers from exposing people’s sex lives. I agree with Mosley that the law should develop so as to punish newspapers if they fail to give the subjects of their stories a chance to seek legal remedies in advance of a publication interfering with private life. The rules would have to be sensibly drawn, of course, to deal with difficult borderline cases and with those rare cases in which a delay in publication might be against the public interest. But I think Mosley’s basic principle is sound.
Eady J himself showed the way forward in his judgment: we should insist on responsible journalism, but in return, take responsible behaviour into account when weighing what may be published. A future Max Mosley should have to meet a fairly high test in order to succed in prior restraint; but no defence of responsible journalism should be available to those who act irresponsibly by rushing to publication in any attempt to evade human rights, and examplary damages should be available if a future Max Mosley succeeds after publication, having been unjustifiably denied a chance to restrain publication in advance.
I wish Parliament would legislate to achieve this. But I can also imagine this kind of approach could be developed by judges – and I think they’d be right to do so.
It’s appalling that a law of prior restraint is being considered at all, and entirely the fault of Paul Dacre and the PCC. It’s been clear for a long time which way the wind has been blowing on privacy and the press, and the PCC should have been leading from the front by calling for responsible journalism and setting out serious penalties for reckless invasion of privacy. Instead, by railing impotently at the human rights act, Dacre has opened the door to an even tougher law. Useless.
I’m not sure exemplary damages would particularly make much difference; in most cases of this sort, damages will be dwarfed by costs anyway. (Mosley was awarded something like £30k in damages, and £420k in costs, plus the defendant will have had to pay their own, similar, costs. Even trebling or quadrubling the damages wouldn’t have that much effect on the overall payout from the newspaper.)
You may well be right. I do take Mosley’s point about it being impossible to undo the harm once it’s done, but that’s true of a lot of things, and we are talking about relatively few cases.
In general I’m fanatical about individual privacy, but I can’t help but be sceptical about a prior restraint law. It’s just so open to abuse. Even if it doesn’t lead to people (or government) being able to completely suppress stories, it does give them the means to manage the news by stalling publication.
I know HoL considers that in his post and says there’s a need to design the law very carefully to avoid such misuse. Perhaps that can be done (I am no legal whiz) but I’ll believe it when I see it.
While I agree with the general issue – that the subjects of these kiss and tell stories should be given the right to reply before going public – I also think that Max Mosley is a scrote full of double standards and really isn’t someone that should be pontificating to MPs on this subject.
From the BBC News Website:
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http://news.bbc.co.uk/1/hi/uk_politics/7934438.stm
“You go into a restaurant and nobody says anything, but you know they all know…
“That’s not very nice for me. What’s really appalling is for my family.”
Mr Mosley added: “Can you imagine seeing pictures like that of your father? It’s just appalling. “
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The feelings of his family didn’t appear to be in the forefront of his mind when he was at it. If he’s so worried about his children finding out he’s boffing prostitutes he wouldn’t do it in the first place!
I also think that names and pictures of people who are accused of crimes should not be published until they’re convicted of anything as such accusations can ruin careers. But that’s a different subject.
He should very much do it in the first place, if that is his own pecadillo. He has, after all, an expectation of privacy, in that his children would otherwise never have seen photos.
Had the salacious photos been of Mosley and his wife, he might well have said the same thing, and justifiably so. On the other hand, you would not. Your moral condemnation is misplaced here.
Claire – well said: Max Mosley really isn’t someone that should be pontificating to MPs on this subject. In fact, he has only been able to do so because he is a high profile figure. I also agree that the feelings of his family hardly seemed to bother Mosley when he was, as you have so elegantly stated, “at it.”
Also, many people see this type of legal development as exemplifying exactly what is wrong with the HRA 1998. It has allowed the judiciary – (and here it is mostly a single judge) – to develop the law in the way they (or he) think(s) it should go. This is properly a matter for Parliament in a democracy.
Somehow one gets the feeling that the MPs enjoyed their little chat with Mosley and will now be content to leave it all to the judges.
But Peter, Parliament did address this, in the Human Rights Act. Article 8 was not a secret then, it was all passed into law quite openly, and everything the courts have done here flows logically from the Strasbourg case-law – they;ve not been making it up as they go along, whatever Paul Dacre thinks. Fine, criticise the HRA; but don’t say it’s the judges wot have done this. It isn’t. Wot the judges have done is simply what anyone would have expected.
Claire, I agree with you about Mosley and his family, but I’m not sure the fact that a man or woman is cheating on their partner in itself justifies lurid exposure of their affair. That, I think, is the 1950s morality Paul Dacre believes in. But more importantly, this is not just about infidelity: people like Dacre, I think, would want to be free to expose the fact that a person – a single person, say – is either gay or a bit kinky with their partner, and regardless of whether they hold high public office. I think it’s important to realise the press here is holding out for purely titillating exposes of blameless people who share quirks with millions of us, say of the vicar who wears his wife’s knickers, because they fear the News of the World won’t be in business without that sort of nonsense. That’s the free speech that’s really at stake here, and which Dacre wants to preserve. Osborne’s right: imagine he did this with his wife. The same principles apply.
Citizen K, don’t believe what the tabloid press tell you about Article 8 and Eady J. It’s just not true that the powerful will be able to use this law to stop disclosure of wrongdoing. Maxwell managed to suppress important stories about his business dealings simply using libel laws, well before the HRA. If you want to stop that sort of thing, you should argue for reform of libel law. In privacy law, it is much clearer whether or not a story infringes privacy than whether or not it’s true; a Maxwell would not have been able to suppress coverage of his raiding of pension funds, say, because that is clearly not a private matter. The idea that privacy can be abused to cover up wrongdoing is a myth.
I do agree with you about the PCC, though: it’s pathetic, and has always been pathetic. As you say, this all could have been self-regulated sooner, but the press chose not to, and David Mellor’s last chance saloon called last orders when the HRA was passed.
Tom: I take your point re: costs, but I don’t think it’s really necessary to spend £500k on a case like this. I’m not a litigator, admittedly, so no expert on costs, but I can well imagine an ordinary person spending much less than Mosley did on an action like this, and recovering exemplary damages that are a much bigger proportion of the overall cost to a losing newspaper than his ordinary damages were.
Don’t get me wrong: I’m all for the HRA and Article 8 and how the courts have used it. It’s the prior restraint I’m nervous about. But if a prior restraint law can really be introduced with watertight protections against abuse, then great. But it needs a lot of debate! And yes, we do need to drastically reform our libel laws!!!
My issue isn’t with him doing it. It’s with him using his family as tools for his own ends (to get this privacy law through)
He should leave the emotional blackmail out of it and base his case on the cold hard fact that none of what he was up to is in the public interest.