PS 43


Memorandum submitted by Max Mosley


My name is Max Mosley. I am president of the Fédération Internationale de l'Automobile, a federation of major motoring organisations and the governing body of international motor sport.


Just under a year ago, I was the subject of revelations about my private life in the News of the World. As a result, I sued the paper for invasion of privacy and was awarded £60,000 damages, a record for a case of that nature in the UK.


Executive Summary


The courts do not currently have reliable means to protect privacy. An editor should be required to give notice to anyone about whom he intends to publish information which a person is entitled to keep private.




1. There is currently a major loophole in UK privacy law. If an editor wishes to publish an item which he knows or suspects is an illegal invasion of privacy, it is in his interest to keep his intention secret from his intended victim, so that by the time the victim finds out, it's too late to do anything.


2. This only happens when the newspaper knows publication is illegal and would be stopped if the victim could go before a judge. In my case it was admitted by the editor of the News of the World that he kept the story secret (going to such lengths as to keep the information from his own staff and publishing a different, unrelated story in the first edition of his paper) because he feared I would seek and obtain an injunction to protect my privacy.


3. Once the story is published, the editor knows that if the victim sues, the result will be more publicity, thus a further invasion of privacy, while the damages received (which cannot be an effective remedy in privacy cases in any event), will be less than the difference between the costs recovered from the newspaper and the bill from the victim's lawyers. The result is that the victim will, quite rightly in most cases, be advised of these consequences and not sue. The victim is thus left with no remedy, while the editor suffers no adverse consequences for his unlawful decision to publish.


4. In order to provide a remedy, as required by the Human Rights Act 1998 (HRA), it is essential to close this loophole. If an editor wishes to publish something which he reasonably suspects a person would wish to keep private, he should be required to give that person reasonable notice of publication.


5. The victim would then have an opportunity to bring the matter before a judge should he or she wish to. A judge will only stop publication if he thinks the victim is likely to win a subsequent action for breach of privacy (s 12 (3) of the HRA). In reaching this conclusion the judge will weigh carefully the right to privacy of the individual against the public interest in the matter the newspaper wishes to reveal.


6. It is quite obvious that an independent judge is better placed to carry out this exercise than an editor, who is inevitably more interested in selling his newspaper than protecting the rights of an individual. In the unlikely event that the story would be lost if prior notice were given, the newspaper itself could apply ex parte to a judge for permission to publish without notice. The essential safeguard is that a judge, not an editor, should decide if it is lawful to publish.


7. A reasonable period is needed because, although a wealthy individual may have lawyers to hand, an ordinary citizen (many of whom are victims of unlawful tabloid revelations) will need time to go to a solicitor and may need to come to an arrangement on fees before applying to court. In the event of an injunction to stop publication, the subsequent privacy action would be in private (although I understand that most cases are resolved after an injunction has been granted). However if the newspaper were to win, full publicity would follow and the newspaper would seek to recover its legal costs.


8. Without a requirement of prior notification, the protection offered by the HRA is nugatory. Once the story is out, it cannot be put back. Unlike libel, where the court can restore a person's reputation, the court is powerless to remove private information from the public mind. It is therefore essential to prevent private information being published unless publication is lawful.


9. Tabloid editors will argue that they should be allowed to publish anything that might interest their readers. In their view, there should be no right to privacy beyond that which they themselves are prepared to grant. It should be they who decide the limits. They believe the current law is wrong. Indeed the News of the World has shown its contempt for the law by applying for the title of "Newspaper of the Year" (see the attached application) on the basis of my case, notwithstanding that after four days in the High Court they were told in the plainest terms by the judge that what they had done was illegal. They are clearly proud that they were able to exploit this loophole in the law and publish illegally.


10. It should be noted that the newspapers themselves have imposed a duty upon individuals to notify them if they are applying for an injunction (s 12 (2) of the HRA), so a prior notice obligation is imposed but it is not reciprocated by the newspapers. Giving prior notice is also recommended by the Editors Code Book and one of the requirements for being able to rely upon a qualified privilege defence to a libel. Where there is genuine public interest and thus no danger of an injunction, as for example in the recent payments-for-peers revelations, the subject of the story is always approached for comment before publication, as normal journalistic practice requires


11. Editors like to claim that the HRA is a "European" law (so, by implication, not British) notwithstanding that the principal architect of the European Convention on Human Rights was the British lawyer (also Attorney General and later Lord Chancellor), Sir David Maxwell-Fyfe. In fact the Convention was designed to incorporate the traditional civil liberties approach of the United Kingdom.


12. In my submission, the current law on privacy is weighted too heavily in favour of the newspapers, but its requirement that the right to privacy be balanced against the right of the public to know something which might affect a decision they need to take about an individual, is fundamentally right. It is the practicality of the implementation of this balancing exercise that is missing. The devastating effect on an individual and his or her family when private and embarrassing matters, particularly sexual, are revealed, is impossible to describe. It should only be allowed when there is a real need for the public to know. No civilised society should allow its citizens to be pilloried for light entertainment or, as the editor of the Daily Mail recently suggested, to boost newspaper sales.


February 2009