Big news in London, where Max Mosley, president of the body that oversees Formula One auto racing, won a large court victory against the British tabloid News of the World. The case has garnered enormous attention in Britain, partly because it was seen as potentially an important decision about the balance between privacy and free speech, but perhaps more because of its connection to sadomasochistic orgies, car racing, and Nazis.
Mosley is the son of Sir Oswald Mosley, a politician and baronet who infamously founded the British Union of Fascists in the 1930s. Earlier this year, the News of the World, the most salacious of the country’s tabloids (and that’s saying something…) published a splashy front-page article headlined “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS.” The paper had paid one of the prostitutes and given her a secret video camera to wear in her bra and film the proceedings. Mosley sued, but not for defamation, because he admits that the main parts of the story are true — he has long been involved in such sexual practices and he’s had group S&M sex with the same women before, at times without paying them. Rather, he claimed that printing the intimate details of his private sexual encounter violated his privacy under the European Convention of Human Rights and he denied any Nazi element to his activities. (Timeline here.)
The case turned on the public interest — or lack of it — in revealing details of Mosley’s sex life. The court held that despite his fairly prominent position as president of a major sports organization (and son of a very famous politician who is now deceased), Mosley retained rights to privacy. There needed to be more justification for the disclosure than merely his celebrity status — perhaps showing that his previous public statements were not truthful or revealing a threat to public health or safety.
Perhaps, the court found, the claimed Nazi theme to the events would contradict Max Mosley’s past disavowals of his father’s political views — but the court then found that there was almost no evidence of such a Nazi theme, only “ordinary” conventions of S&M. The newspaper then fell back on the notion that Mosley committed the crimes of assault and prostitution. The court found that there since everyone consented there was no assault. As to the charges of prostitution, the judge pointed to some technical reasons why certain brothel-related charges would not apply to the case, and then mostly brushed them off in paragraphs 111 and 117 of his opinion (I love the numbered paragraphs in European court decisions):
The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliff? Surely not. There must be some limits and, even in more serious cases, any such intrusion should be no more than is proportionate. …
It is well known that the Attorney-General and the Crown Prosecution Service exercise discretion in deciding whether to institute criminal proceedings and frequently acknowledge that it would not be in the public interest to prosecute every crime – however trivial. I have little doubt that such a discretion would be exercised in cases of this kind.
Finally, the judge said that exposing deviant sex is not itself enough public interest:
[I]t is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law. That is so whether the motive for such intrusion is merely prurience or a moral crusade. It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they are entitled to hound those who practise them or to detract from their right to live life as they choose.
There is a lot more to the opinion, but I found this definition of public interest fascinating.
I am not sure Mosley would have won under U.S. law. A comparatively important sports executive (perhaps the commissioner of football or basketball?) would likely be considered a public figure. Some courts would conclude that almost anything these people do is newsworthy and thus insulated from liability under the privacy torts. U.S. courts might also be more swayed by the argument that the sex acts involved are inherently immoral and so newsworthy. (They certainly would not be as blase as this judge!) I’d guess that the most promising argument for the plaintiff under U.S. law would be the newspaper’s role in making the video recording and then posting excerpts on its web site. This was a part of the rationale for the British decision but not its focus. Even then, the American tradition of deference to journalists is very strong. I’d mostly be glad to see somewhat more robust privacy protection for truly private activity, but I am also concerned about the potential chilling effect on the press. The First Amendment exerts a stronger gravitational pull against such restrictions on journalists than anything in European law.
Of course, we may never know, because such extreme cases come along rarely. Figures like Mosley usually do not want to take the stand and talk even more about the sex lives they were trying to keep secret. In the U.S., given the breadth of discovery in our litigation and the obstacles to recovery under the privacy torts, there may be even more reasons not to sue. But it’s interesting to speculate.