Mr Justice Eady said there was nothing ‘landmark’about his ruling in the case of Max Mosley versus the News of the World last Thursday.
But his 53-page judgment is the most detailed yet, from the country’s senior libel judge, on a privacy case and provides a fascinating and highly significant insight into his thinking on this developing aspect of the law.
On Thursday, Eady awarded record damages to Mosley of £60,000 after the NoW published reports, photos and video footage from his extra-marital S&M sex session in a Chelsea flat with five dominatrices. It also ordered the NoW to pay his costs of £450,000. The papers’ own costs are believed to be several hundred thousands.
Breach of confidence
Although Eady said he took European Court judgments and the European Convention on Human Rights into account, he said there was also a case under the ‘old-fashioned’UK law of breach of confidence relating to the revelations of the News of the World’s source – ‘Woman E”.
‘â€¦there is a fairly tight-knit community of S&M activists on what is known as ‘the scene’ and that it is an unwritten rule that people are trusted not to reveal what has gone on. That is hardly surprising.
‘It is alleged against the woman in question (known as ‘Woman E’) that she breached that trust and that the journalist concerned must have appreciated that she was doing so. That could not in reality be disputed, since the whole object of supplying her with a concealed camera, and instructing her how to use it, was to ensure that she could record the events without being suspected by her fellow participants.”
However, he added that the law of confidence has been extended ‘under the stimulus of the Human Rights Act 1998 and the content of the Convention itself”.
‘The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence. That is because the law is concerned to prevent the violation of a citizen’s autonomy, dignity and self-esteem.
‘It is not simply a matter of ‘unaccountable’ judges running amok.
Parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts.”
Eady suggests that the NoW would have been better able to prove that its bugging of Mosley’s Chelsea flat was justified in the public interest if chief reporter Neville Thurlbeck was able to provide notes of conversations with Woman E.
Referring to an inconsistency in Thurlbeck’s evidence, Eady said: ‘The problem is naturally compounded by the absence of any contemporaneous notes of the conversations he purports to record. There are undoubtedly inconsistencies, which make it very difficult to decide how much can be relied upon.”
On the general issue of sex and privacy, Eady is clear: ‘One is usually on safe ground in concluding that anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults (paid or unpaid).
‘It was often said that ‘there is no confidence in iniquity’, but it is highly questionable whether in modern society that is a concept that can be applied to sexual activity, fetishist or otherwise, conducted between consenting adults in private.”
Infringement of privacy to expose a crime can be acceptable, Eady says, but not if that crime is too minor.
‘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.”
Is spanking assault?
On the question of whether the spanking, even if it resulted in minor injury, constituted assault, Eady said: ‘No one could pretend that this was either the original reason or a justification for the clandestine filming or the coverage.”
He added: ‘There is no question of a sexual offence being committed, since everything was consensual.’
The NoW’s public interest defence hinged, in Eady’s opinion, on whether there was a Nazi theme: ‘The only possible element of public interest here, in the different context of privacy, would be if the Nazi role-play and mockery of Holocaust victims were true. They were not.’
And accepting that NoW editor Colin Myler and Thurlbeck acted in good faith, he said: ‘I am prepared to accept that Mr Thurlbeck and Mr Myler, on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe.”
Denying that his judgment was a landmark one, Eady said: ‘It is perhaps worth adding that there is nothing ‘landmark’ about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism, where the public interest is more genuinely engaged.”