Mosley was right to sue - but now I fear MPs are closer to backing a privacy law

Roy Greenslade
11 Mar 2009

Max Mosley gave an impressive performance in front of MPs yesterday.

He was master of his brief, quoting data, legal statutes and case histories without bothering to look at any notes.

He was measured, reasonable and polite as members of the House of Commons Select Committee for Culture, Media and Sport questioned him about his ambition to see a privacy law enacted in Britain.

Indeed, Mosley's argument was beguiling, not least because he made out such a good case against intrusion into his privacy by the News of the World.

He was outraged by the publication of the story, pictures and video footage of him at what he likes to call a sado-masochistic "party" and what the paper called an "orgy".

He was even more angered, given that he is the son of the wartime fascist leader Oswald Mosley, by the paper's claim that the party had involved a Nazi scenario, an allegation the News of the World was unable to substantiate when sued by Mosley.

His court victory over the paper last year, resulting in a record award of £60,000 in damages, did not assuage his hurt.

That is why he is pursuing libel claims against the paper in France and Italy, and why he asked to appear before the MPs (and why he is still contemplating whether to sue the News of the World all over again, this time for libel).

Mosley is on a mission and he is proving to be the most articulate and determined foe the press have ever faced.

As I have written previously, I believe that he was right to sue, and I was delighted that he won. He is also convinced that he has the support of the public, and I have some evidence to support that.

One of the assignment questions I set my City University postgraduate journalism students last term was about the Mosley case.

More than 100 of them chose that option and all, without exception, sided with Mosley, believing that there was no public interest in revealing his sexual frolics.

The overwhelming majority thought that his presidency of the Federation Internationale de l'Automobile did not make him a public figure, and he was not therefore "a role model" in the accepted terms of that phrase. He was engaged in a private activity that should have remained private.

But my sympathy for Mosley's plight, and my appreciation of his arguments before the committee, do not blind me to the fact that a privacy law would be a gross inhibition of press freedom.

It would have, as the MP Paul Farrelly suggested to him, a chilling effect on serious investigative journalism.

Mosley swept Farrelly's objections aside. It would be fine, he said. Judges would consider whether a story was in the public interest. They are independent and would take rational decisions.

Tabloid editors, by contrast, take their decisions on whether to publish based on a desperate commercial need to maximise sales. Note the pejorative use of "tabloid".

Farrelly, a former Reuters, Independent and Observer journalist, did his best to draw Mosley away from red-top mischief towards examples of public-interest journalism that would suffer if people were allowed to go to court before publication. He did not, however, push Mosley far enough down that road.

Let us imagine that Parliament was foolish enough to enact a privacy law. Mosley's argument presumes that judges would only get involved once journalists had amassed their evidence and then approached the people in order to offer them a chance to explain themselves prior to publication. (It is part of Mosley's demand that "victims" must be informed what a paper plans to say about them ahead of publishing it, thus giving them a chance to respond or, of course, go to law).

But this is not what would happen in the real world. In many cases, the so-called victims would probably find out during the course of a paper's investigation that its journalists were making inquiries about them.

Indeed, they might find out well before the journalists had managed to get enough material to provide a convincing case before a judge that they had enough information to warrant going to press.

So we would face a situation in which newspapers would find themselves constantly fighting off injunctions without much hope of obtaining a sympathetic ruling. It would, in other words, be a pernicious form of prior restraint.

Mosley believes judges would simply adjudicate every issue based on public interest. But if people were able to obtain injunctions early in the reporting process, especially soon after journalists had received their original tip, the evidence would be too thin.

A further problem is that journalists defending themselves from injunctions would inevitably find themselves under persistent pressure to identify their sources. They would, of course, refuse to do so, and there would be prolonged court actions as they sought to protect their sources' confidentiality.

The costs of these actions, especially for the less profitable (or lossmaking) newspapers would be prohibitive.

That would surely dissuade many papers from even setting out on investigations into the wealthy and powerful.

Public interest would be the loser. Even if we accept Mosley's argument that the journalists have finished their story before they appear before a judge, there is little likelihood of obtaining an instant decision on whether or not they can publish.

Again, the real world intrudes. Stories would end up as legal cases, dragging on for years and making lawyers richer then ever. Yet I got the feeling that Mosley won over many MPs to his point of view.

I have always believed that a privacy law would never arrive in Britain. Thanks to the News of the World provoking Mosley, we have moved closer to one than ever before.