News of the World in breach of Article 8
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.”