UK Liberty

Mosley did not deserve the protection of the law?

Posted in privacy by ukliberty on July 25, 2008

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:

Did Mosley do it in private? Yes
Was it legal? Yes
Did Mosley seek to make any personal gain out of it? No
Does it impact on Mosley’s ability to do his job? No

There was absolutely no reason for the media to get involved with Mosley’ s private and consensual sex life.

Craig, London

Everyone in the UK is equal before the law and deserves the law’s protection.

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.

Rowan, Oxford

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.

Rees-Mogg:

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.

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2 Responses

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  1. Lee Griffin said, on July 26, 2008 at 12:31 am

    Good article, I’ll be writing more about this, I’m very happy with the result.

  2. Shelly Ainsworth said, on October 27, 2008 at 2:31 pm

    Agreed – good article. We live in too much of a ‘nanny state’. Did he hurt anyone? geez…what a waste of taxpayers money.


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