Two weeks ago Max Mosley won his privacy case against the News of the World and received an award of damages in the sum of £60,000 plus costs. The case centered on Mr Mosley’s participation in an S&M session with a German prison theme involving consenting (and paid) adults.
The newspaper had supplied one of the participating women with a hidden video camera. She recorded the session and the newspaper published not only parts of the “shocking video”, but also its take on the session which, it said, had a Nazi theme.
But Mr Justice Eady found no evidence of a Nazi theme and that the newspaper had invaded Mr Mosley’s privacy. Mr Mosley is now bringing a libel action.
Following the judgment, elements of the media became extremely vocal. The central theme of most arguments was that Britain now has a privacy law “by stealth” and that this judgment heralds the end of freedom of speech. For the record, I am not against free speech.
So, what are we to make of this judgment? Is it really game over for the press? And is democracy really at risk? Of course not. The judgment is unremarkable in all but the amount of damages awarded. 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.
So here’s the problem: the scaremongers who filled the airwaves and who appeared in our papers should realise that each time they try to use their freedom-of-expression trump card in support of nothing more than articles involving titillation, celebrity culture or gossip, they do this important freedom a real disservice.
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. We don’t have a privacy law “by stealth”, as many have suggested. Rather the law derives from the Human Rights Act 1998, which Parliament itself enacted.
The Mosley judgment merely followed developing case law, most notably Naomi Campbell’s privacy case against the Daily Mirror, which went all the way to the House of Lords (twice).
The highest court in the land acknowledged in that case that privacy
is equally as important as freedom of expression. Eady J was simply applying the law. It couldn’t be further removed from a law being introduced “by stealth”. Indeed, no one I spoke to in the privacy world before the judgment thought the case would go the other way. That in itself is, in my view, extremely telling.
It’s about time that restrictions were in place. Intrusions into private lives should stop, unless there’s a legitimate public interest in overriding the protection, such as for the exposure of a serious crime.
In Los Angeles this week there’s to be a meeting by a regional task force regarding the activities of the “overly-aggressive paparazzi”, many of whom have caused or at least been involved in car chases, trespass and harassment of individuals. How long is it before someone is seriously injured or even killed? Members of the general public are at risk from such behaviour too.
Not that the paparazzi’s actions can be justified, but they wouldn’t behave in such a way if there was no market for their pictures. Tabloids and magazines that publish such material should make some tough decisions or they too will share in the blame. This type of behaviour rarely occurs in the pursuit of serious journalism or the exposure of a serious crime. Next time someone mentions a risk to freedom of expression I, for one, will be looking behind the scaremongering.