Max Mosley Wins His Privacy Case Tightening The Screws on UK Tabloids

Philip Stone July 25, 2008

Max Mosley, the Formula 1 president, has won record privacy damages against Murdoch’s News of the World tabloid, the judge saying that while there was no doubt certain sexual events occurred in Mosley’s apartment the newspaper had recklessly ignored his right to privacy, and that the only real reason for printing the story and placing video online was for material gain. The newspaper had said running the story was in the public interest because of Mosley’s position within Formula 1

A major part of the case was the NOW’s claim that orgies took place with Nazi themes. The judge said that despite uniforms were worn, and German accents were used, there was “no evidence” the two orgies had Nazi themes.

Mr. Justice Eady in London, who is building a reputation in UK High Court circles for favoring the right to privacy over the right to publish,  awarded the FIA (Federation Internationale de l’Automobile) president £60,000 ($120,000, €150,000), a record damages award for breach of privacy.

Mosley was very sensitive to the Nazi claims because he is the son of the world War II UK fascist leader, Sir Oswald Mosley.  The court heard testimony that Mosley was spending £75,000 ($150,000, €95,000) a year on violent orgies, but Mosley’s legal team said to claim these two secretly filmed orgies had Nazi themes was a step too far.

Mosley said after the decision, “I would like to say I am delighted with a judgment which is devastating for the News of the World. It demonstrates that their Nazi lie was a complete invention with no justification. It also shows they had no right to go into private premises and take pictures and film adults engaged in activities which are no one’s business but their own to know. I am very pleased with this result."

The judge said in his ruling, “I decided that the claimant had a reasonable expectation of privacy in relation to sexual activities, albeit unconventional, carried on between consenting adults on private property. I found that there was no evidence that the gathering on March 28, 2008 was intended to be an enactment of Nazi behavior or adoption of any of its attitudes. Nor was it in fact. I see no genuine basis at all for the suggestion that the participants mocked the victims of the Holocaust."

And in a warning on how tabloids operate in the future the Judge said, “There was bondage, beating and domination which seem to be typical of S and M behavior, but 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 website - all of this on a massive scale.

"Of course, I accept that such behavior is viewed by some people with distaste and moral disapproval. But in the light of modern rights-based jurisprudence, that does not provide any justification for the intrusion on the personal privacy of the claimant."

But Mosley did lose in one area – his attempt to set legal history by asking for punitive damages in such a privacy case. The judge said in this case such a request was not legitimate. 

In setting the monetary punishment the judge said, ““It has to be recognized that no amount of damages can fully compensate the claimant for the damage done. He is hardly exaggerating when he says that his life was ruined. What can be achieved by a monetary award in the circumstances is limited. Any award must be proportionate and avoid the appearance of arbitrariness.”

The New of the World, of course, was none too happy with the decision. The editor, Colin Myler, said, “As the elected head of the FIA, Mr. Mosley is the leader of the richest sport in the world, with a global membership of almost 125 million. This newspaper has always maintained that because of his status and position he had an obligation to honor the standards which his vast membership had every right to expect of him."

And he centered on a fact that the British don’t always like to accept – that they are part of Europe and therefore the decisions of the Court of Human Rights which, particularly in the Princess Caroline decision, has strengthened the right to privacy by “public” figures. Basically, if they are not “on duty” leave them alone. “English judges are left to apply those laws to individual cases here using guidance from judges in Strasbourg who are unfriendly to freedom of expression. The result is that our media are being strangled by stealth,” Myler said.

About the only thing the media got out of the decision – apart from no punitive damages – was that the judge said this was not a “landmark” decision, rather

it was applying unusual facts to established principles. And the judge said he had no problem with investigative journalism where the public interest was "genuinely endangered".

The privacy damages awarded are more than four times the previous record -- the £14,600 awarded to Catherine Zeta-Jones and Michael Douglas over unauthorized use of their wedding pictures in Hello magazine, in May 2003.

Mosley may have won in the UK High Court but necessarily in the court of public opinion. The Crown Prince of Bahrain told Mosley he didn’t want him in the country for that nation’s race, the Australian prime minister refused to meet with him, and some corporations affiliated with Formula 1 were none too happy.

After May’s publication of the events, Mosley surprisingly won by two-thirds a vote of confidence to stay on as FIA president of the FIA - a position he has held since 1993. Voting against him were the associations in the US, France, Australia, Spain and German, the latter actually going further and freezing all its FIA activities.

Mosley’s term of office expires in October 2009.