When Formula 1 boss Max Mosley’s legal team launched libel proceedings against the News of the World, more than one media lawyer was taken aback.
Just the day before (24 July), Mosley had won a privacy action against the newspaper, which had claimed that secretly filmed footage of the Fédération Internationale de l’Automobile (FIA) president taking part in a sadomasochistic sex orgy had Nazi connotations.
Olswang partner Dan Tench’s reaction sums up how many in the legal profession felt on hearing about the libel action.
“It was a little surprising that Mosley decided to proceed with the libel action knowing it would simply result in all these intimate matters being vented in public yet again,” says Tench. “He seems to be a glutton for punishment – but then we probably knew that anyway.”
The decision to follow the privacy case with the libel suit could, though, have serious implications for the media industry.
The Lawyer’s Partner of the Year Gideon Benaim of Schillings explains that the privacy ruling itself did not change anything, while newspapers harping on about restrictions on freedom of speech is a nonsense.
“Even the judge points out that there is nothing ‘landmark’ about it and that it cannot reasonably be suggested that it will inhibit serious investigative journalism,” says Benaim. “Whether the tabloids like it or not, freedom of expression doesn’t trump everything else. It has to be balanced against other rights, such as the right to privacy.”
Tench agrees – but he points out that the £60,000 of damages awarded to Mosley was a record. Tench believes that the innovation lies in bringing the libel suit after the privacy action.
“This is quite novel,” says Tench. “Not only using a privacy claim as a precursor to a libel action, but indeed using any type of action as such a precursor.”
Whether Mosley’s gambit will succeed is up for debate. As Tench explains,
it throws up an interesting issue concerning res judicata.
“The general principle is that, once an issue has been determined in court between the same parties, in this case whether there was a Nazi theme, it binds the parties and it should not go before the court again,” says Tench. “The difficulty here is that the libel case will probably have a jury trial, as opposed to being in front of just a judge. The newspaper may say that the mere adoption of the decision from the privacy claim, which was made by a judge alone, to the defamation action will undermine its right to have the matter tried and determined by a jury.”
Finers Stephens Innocent partner Mark Stephens, who claims to have been the first to predict that Mosley’s lawyers would bring a libel action, is not sure whether Tench’s concerns will be an issue.
“What [Mosley’s legal team] have done is get judicial finding on the Nazi allegation so that a jury in libel can’t turn round and then say it is,” says Stephens. “The tactics they used were definitely premeditated, as they requested [Mr Justice] Eady to make a finding on the Nazi allegation to help out Max Mosley with the FIA, but it also helped to set up the grounds for a libel case.”
Stephens’ concerns have more to do with the restrictions a Mosley libel win would place on the media, as he believes it would have a chilling impact on investigative journalism.
“Not only the News of the World type, but also for more serious investigations, as journalists often need to go into the darkest recesses to be able to find the evidence,” says Stephens. “They need to use concealed recording devices to do this on occasion, and that will breach privacy. So even if there isn’t a libel, a claimant has a get-out-of-jail-free card through privacy. It creates a catch-22 situation.”
Whatever the difficulties and outcome of Mosley’s libel claim, one thing is for sure: the decision on this case will have ramifications for the whole of the modern media landscape.