William Rees-Mogg in The Times essentially writes:
Mr Mosley engaged in activities that I disapprove of therefore he does not deserve the protection of the law.
Readers’ comments seem spot on:
There was absolutely no reason for the media to get involved with Mosley’ s private and consensual sex life.
Not very long ago, people would have made the same argument about gays that you make about Mosley. The fact that something is scandalous does not mean that there is justification for invading privacy to expose it.
Something that struck me about Rees-Mogg’s article was his lauding of US law and disapproval of European law:
The Griswold ruling [available online] lacked the clarity or the logic necessary to make good law. However, it suited the taste of an activist Supreme Court, and provided a new right of privacy parallel, though subordinate, to the right of free speech in the First Amendment.
But one point made in Griswold was that: (a) the right to privacy (in marriage, anyway) was not a new right, indeed Justice Douglas claimed it was “older than the Bill of Rights – older than our political parties, older than our school system”; (b) although the right to privacy was not listed in the Bill of Rights, the Ninth Amendment provided for the existence of rights that weren’t listed; (c) there were implicit recognitions of privacy and the private enjoyment of property in the Third, Fourth, and Fifth Amendments.
The irony here is that some members of the Constitutional Convention were disappointed that the Constitution didn’t enumerate their rights (the Bill of Rights is in fact a list of its first ten amendments – note that those aren’t the only rights in the Constitution).
Supporters of this position argued (example) that they had not given the new federal government the power to restrict inherent rights, so there was no need to list them – indeed the very act of listing some rights may imply to their countrymen that those were their only legitimate rights and others might be forgotten or not recognised.
Indeed Justice Goldberg, in Griswold, said of the Ninth Amendment:
It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.
In US law the First Amendment still has considerable force. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the government for a redress of grievances.”
That remains good law. However, the European convention did not put the rights that it created in any particular order
I wonder which Bill, Convention or Declaration of Rights does put the rights in a particular order?
- they have to jostle against each other in the light of the circumstances of individual cases. To a significant degree this interplay of rights depends on the discretion of judges, and English judges have not always been sympathetic to the exercise of press freedom.
The implication is that the judges in the USA don’t ever have to think about such things: that is of course nonsense, as is demonstrated by the fact that there are privacy cases in the States.
In his judgment, Mr Justice Eady points out that there is a potential conflict between Articles 8 and 10 of the European convention. This is the Council of Europe convention that was incorporated into British law in 1998. Article 8 states that “everyone has the right to respect for his private and family life, his home and his correspondence”. Article 10 states that “everyone has the right to freedom of expression. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” There are obvious defects in these clauses that do not arise from the terms in which they were drafted.
Only if one refuses to read the second part of Article 10:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
In other words Article 10 explicitly recognises that the freedom of expression is not absolute and may be subject to limitations in some circumstances as I emphasised above.
Then of course we need a neutral and informed decision-maker (the court) to decide what is a proportionate limitation (for example) should there be a complaint.
What is unreasonable about that?
But at the end of the day I continue to wonder why Colin Myler and William Rees-Mogg think the freedom of expression includes the right to enter private property with a surveillance camera to tell the world about the private activities of consenting adults.
Important to look at this case as a balancing act of one right vs. another:
14. This “ultimate balancing test” [e.g. freedom of expression vs. right to privacy] has been recognised as turning to a large extent upon proportionality: see e.g. Sedley LJ in Douglas v Hello! Ltd  QB 967 at . The judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public interest supposedly being served by it.
15. One of the more striking developments over the last few years of judicial analysis, both here and in Strasbourg, is the acknowledgment that the balancing process which has to be carried out by individual judges on the facts before them necessarily involves an evaluation of the use to which the relevant defendant has put, or intends to put, his or her right to freedom of expression. That is inevitable when one is weighing up the relative worth of one person’s rights against those of another. It has been accepted, for example, in the House of Lords that generally speaking “political speech” would be accorded greater value than gossip or “tittle tattle”: see e.g. Campbell at  and also Jameel (Mohammed) v Wall Street Journal Europe Sprl  1 AC 359 at .
The judge said of the defendant’s claim that there were grounds for believing criminal acts had taken place,
It would hardly be appropriate to clutter up the courts with cases of spanking between consenting adults taking place in private property and without disturbing the neighbours. That would plainly not be in the public interest. It would not be logical, therefore, to pray in aid the public interest when seeking to justify hidden cameras and worldwide coverage.
The newspaper was in the dock for publishing details of his five-hour S&M orgy with five prostitutes in a secret Chelsea flat.
In court Mr Mosley admitted to enjoying these practices for the past 45 years, a fact of which his wife and children were unaware.
The judge has ruled that Mr Mosley’s activities did not involve Nazi role-play as we had reported, but has acknowledged that the News of the World had an honest belief that a Nazi theme was involved during the orgy.
In fact the judge was rather equivocal about that belief:
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. Indeed, they needed to believe this in order to forge the somewhat tenuous link between the Claimant and his father’s notorious activities more than half a century ago and, secondly, to construct an arguable public interest defence. …
The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached “in the round”, as Mr Thurlbeck put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of “mocking” concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with “responsible journalism”. Returning to the terminology used by Lord Bingham in Jameel (cited above), the judgment was made in a manner that could be characterised, at least, as “casual” and “cavalier”.
Back to Myler:
Unfortunately, our press is less free today after another judgement based on privacy laws emanating from Europe.
Oh Europe, you devil.
But of course he’s talking rubbish. If there was a genuine public interest, the judge may have found in favour of the newspaper. What you must not do is invade someone’s privacy and then make things up to justify the invasion. What confuses me is that this seems so reasonable yet newspaper editors don’t seem to comprehend it.
If his statement is honest, it calls into question his competence to run a newspaper.
How those very general laws should work in practice has never been debated in the UK parliament. 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.
That is why the News of the World will remain committed to fighting for its readers’ right to know.
We are also pleased that the judge did not award Mr Mosley exemplary damages.
He found that the notion of such punitive awards has no place in this creeping law of privacy.
The News of the World believes passionately that its readers deserve to be informed of when the trust is placed in their elected leaders and public officials has been violated.
It is not for the rich and the famous, the powerful and the influential, to dictate the news agenda, just because they have the money and the means to gag a free press.
Missing the point entirely – reader’s do not have an overwhelming “right to know”: “the Claimant had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property.”
The judgement seems very detailed and well reasoned particularly on this point.
There also seemed to be an element of blackmail:
[Neville Thurlbeck, chief reporter, News of the World] became more insistent the following day:”I’m just about to send you [the women involved] a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow up we have to our story.
Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you.
This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won’t be used or your pictures).
Please don’t hesitate to call me … or email me with any thoughts.
The judge said of this,
it would appear that Mr Myler [editor of the News of the World] did not consider there was anything at all objectionable about Mr Thurlbeck’s approach to the two women, as he did not query it at any stage. This discloses a remarkable state of affairs.
Nor did Thurlbeck appear to understand that it could constitute blackmail when he threatened people that something might be revealed unless they did something for him.
It reminds me of how the media used to treat homosexuals – “we can out you, or you can give us an exclusive story and come out to us. You’ll be in the driving seat…”
All very nasty. Let’s destroy people’s lives in order to sell newspapers to the prurient.
And is it not a concern that Women E’s husband, an employee of MI5,”saw the opportunity of making £25,000 out of the News of the World and who made the first approach.”
The European Court of Human Rights said in a judgment on Thursday that Finland had failed to protect the confidentiality of patient information and ordered the state to pay a nurse about 14,000 euros in damages and 20,000 euros in costs.
The nurse worked in a public hospital on fixed-term contracts between 1989 and 1994 and paid regular visits to the same hospital’s infectious diseases clinic from 1987, having been diagnosed with HIV. In 1992, it transpired that her colleagues at the hospital’s ophthalmic department had had access to her patient records. Three years later, her contract was not renewed.
The Strasbourg court found unanimously that the district health authority, by failing to establish a system from which the nurse’s confidential patient information could not be accessed by staff who did not treat her, had violated article 8 of the European Convention of Human Rights, which says “everyone has the right to respect for his private and family life, his home and his correspondence”.
The Court notes that the mere fact that the domestic legislation provided the applicant with an opportunity to claim compensation for damages caused by an alleged unlawful disclosure of personal data was not sufficient to protect her private life.
That bit is important because governments tend to claim of such things that in the unlikely event of a breach of privacy the individual is entitled to claim compensation, and therefore we need not worry about a thing! Of course sometimes no amount of money may compensate for unauthorised disclosure of personal information.
What is required in this connection is practical and effective protection to exclude any possibility of unauthorised access occurring in the first place. Such protection was not given here.
I have some sympathy for the Government here, because I can’t see how they could “exclude any possibility of unauthorised access”.
Indeed that is one of my arguments against any system that stores lots of personal data in (essentially) one place and allows a large number of people access to it – that there will always be a risk of unauthorised access.
All we can do is attempt to decrease the risk of unauthorised access, and observe the principle of only storing the data relevant for the purposes for which they are processed in order to mitigate the damage of unauthorised disclosure.