If You Agree That 'What Happens In Vegas Stays In Vegas, Then How Do You Feel About A Sex Orgy At Home As Pages Of Tabloid Fodder Plus The Video On The Newspaper’s Web Site?

Philip Stone July 8, 2008

It’s titillating stuff. Max Mosley, 68-year-old son of the 1930s British Fascist leader Sir Oswald Mosley and who is now the president of the governing body for Formula 1 racing, captured on a video camera in his bedroom romping with five prostitutes. The UK Sunday tabloid News of the World (NOW) gleefully claimed it was a “sick Nazi orgy.” and promptly put the video on its web site which more than 1.4 million viewers have now accessed.

But Mosley is now suing for really big punitive bucks in what may ultimately test whether entitlement to privacy wins out over the “public’s right to know”. And the UK media is no longer smirking about this story; indeed it is seriously worried because if the judge sides with Mosley then not only tabloid journalism but the broadsheets, too, could well be in for a very nasty jolt on what they can and cannot publish in the future about our private lives.

Mosley’s libel suit that began its UK High Court run Monday was brought under Article 8 of the European Convention on Human Rights that protects EU citizens’ privacy. Article 10 of the same convention protects freedom of expression. If there is a conflict which dominates? The European Court of Human Rights  (ECHR) issued the landmark Princess Caroline of Monaco privacy decision in 2004 favoring privacy if public figures are “off duty”  and it is the fear the judge will rule that such privacy applies to Mosley that there is much nervousness not only at News International, publisher of the NOW, but other media, too. 

The ECHR ruled that photos published in 1993 and in 1997 of Princess Caroline and her children in public – sitting at a café, playing sports, out shopping etc – things any normal person would be doing during their time off from work – were illegal. The court ruled that every person, however well known, must be able to enjoy a legitimate hope for the protection of his or her private life and that included public figures. No one can publish a picture of her during her private life without her express consent, the court said. The court said that to do so within the EU would violate her human rights under the European Convention on Human Rights. Although the ruling was directed at Princess Caroline, it could apply to anyone.

So if Princess Caroline was off limits when she was out in public but privately, then does what happens in one’s home come under the same privacy protection? The problem for the media is that European courts are increasingly favoring privacy issues based on Article 8 if they come in conflict with freedom of expression based on Article 10.  

Moseley does not deny the basic facts of the case – there were five prostitutes, there was sadomasochism, he says it was a “party” rather than an “orgy”, but he absolutely denies there were Nazi overtones. His own lawyer admitted in court, “"Bottom spanking, whip fantasy and role play scenarios are an interest he accepts he has had since quite a young age."

But that was Mosley’s own business, and not the public’s, his lawyer said. He called the newspaper a Peeping Tom (a British expression from the legend of Lady Godiva of a voyeur who derives sexual pleasure from observing other people) and he labeled the newspaper’s actions a “gross and indefensible intrusion” into Mosley’s private life.

And that is where Mosley is looking to make his own UK privacy case law by suing not just for compensatory damages but also for punitive damages. The newspaper’s basic defense is that publication was justified in the public interest. Mosley told the court he did not believe his private life was of concern to F1 fans.

Mosley’s lawyer told the court, “To hide a listening device or a hidden camera in someone’s bedroom in order to spy on them having sex violates a basic human taboo. There would have to be serious public interest of a very high order to justify doing this.”

For a tabloid, the Mosley sex romp was about as good as it gets. The newspaper showed him being spanked by one of the women with a whip, and he used a strap to spank another woman. That in itself was bad enough for Mosley, but because of his parents’ Fascist background it struck a really raw nerve when the newspaper claimed the rented apartment where the events occurred was a “torture chamber” and he played a concentration camp commander and also a cowering death camp inmate. His lawyer said that was “shocking and entirely false”. Mosley himself told the court, “I can think of few things more unerotic than Nazi foreplay.”

The Mosley case is being heard without a jury by Mr. Justice Eady, the same judge who ruled in 2005 for Canadian folk singer Loreena McKennitt in her privacy suit against Niema Ash, a former friend and colleague, who wrote a book that contained personal details that McKennitt said was an invasion of her privacy. That ruling, upheld by the appeals court, has tabloids already thinking twice about publishing “kiss and tell” celebrity stories. On other high profile privacy matters Justice Eady has ruled in favor of privacy over the right to know.

The main legal point for the News of the World’s lawyers is whether they can convince the judge there was an overwhelming public interest for Mosley’s privacy to have been so violated. Just how important is it that the activities appeared to be brutal and depraved or that Mosley spoke in German to women who did not understand German and that when he spoke in English it was with a German accent? Uniforms were worn that the newspaper said were German, and putting all of that together the newspaper called it a “Nazi orgy.” Even if all of that was so, the judge will have to decide whether Mosley’s expectations of privacy takes precedence over the people’s right to know under free expression. 

Or put another way, in Europe, assuming no crime, no matter what the hanky-panky, “What happens at home stays at home?”