RR Phantom
Location : Wasted Space
Job/hobbies : Cayman Islands Actuary
 |  Subject: UK: Sex is not in the public's interest  Fri Jul 25, 2008 8:03 pm | |
| "MAX MOSLEY opens new frontier in the battle for privacy; it's the end of kiss-and-tell," sobbed Britain's newspapers yesterday. "Read what really happened at the orgies," enticed their sister websites.
The sky was falling on Fleet Street yesterday as the nation's tabloids and scandal rags, broadsheets and print grand dames came to terms with the High Court justice Sir David Eady, who had pulled Mosley, the Formula One boss, out of the pits and thrust him firmly back onto the track £60,000 ($125,000) richer.
Eady also threw a spanner in the media's works for good measure: total costs awarded against the News Of The World could reach £850,000 and a suite of related libel cases against other publications are now said to be in the wings.
Indeed, despite his careful disclaimer that his was "not a landmark ruling", Eady's clear and unequivocal judgment, declared once and for all that no matter how distasteful or morally questionable the public might find Mosley's sexual peccadillos, the media simply does not have the right to expose them as they occurred in private, between consenting adults and did not constitute a "significant" crime.
The ruling, according to the majority of legal commentators in Britain, does not set a precedent. But it will effectively give powerful new vigour to a 1998 ruling of the European Court of Human Rights, which stated that an individual's privacy has legal precedence over the media's right to investigate him.
At the time, there had been a plethora of intrusions that had thrown the excesses of the London press into the ambit of Britain's public discourse: Princess Diana's death and treatment at the hands of the paparazzi was prime on the agenda.
Over the 10 years that followed, various public figures used this notion of right to privacy to investigate and test their legal recourse. There was the infamous case of Catherine Zeta-Jones and Michael Douglas, who sued because their wedding photos were published without approval (they won £15,000); and the exposure of Naomi Campbell's attendance at a Narcotics Anonymous meeting (£3500).
The notion of what constitutes privacy was thrashed out in these and a number of other high-profile cases, each one providing - bit by bit - some semantic and legal flesh on what has been a very lean, legal definition. The children's author J.K. Rowling also played a part and argued that a snap taken of her little boy in a public street was an intrusion in her privacy. Despite the billions behind her, this case was not upheld.
Ultimately, however, the heart of the Mosley matter lay with the definition of what is deemed to be of public interest. And it is here that Eady really changed the landscape: in future, the media will need to be armed with an unassailable public interest reason to justify publication of an individual's private life, sexual or otherwise.
This means, effectively, that it will need to expose evidence of a crime - or perhaps proof of an activity that the individual may have denied in public previously. Even elected officials such as MPs will be entitled to a notion of privacy.
In the Mosley case, the judge seemed to say that the only possible public interest would lie in the veracity of the Nazi role-play accusations. As these were knocked out, then the possibility of public interest was too.
Interestingly, lawyers writing and analysing the case for the major newspapers appeared not to agree on the final, flow-on effect to the media. Dan Tench, a partner at the law firm Olswang, argued in The Guardian that in the end, the case has only raised the amount of damages awarded and is unlikely to act as a significant deterrent to the tabloids. Niri Shan and Mark Dennis, media lawyers at Taylor Wessing and writing for The Times, on the other hand, argued that the bar has now been raised so significantly that newspaper lawyers will demand a far greater test of the public interest before approving similar stories for publication.
But perhaps the last word should go to the London Telegraph - its front-page lead said it all: "Mosley victory will keep adultery secret."
And how English is that?
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