Written evidence 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
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.
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
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
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.
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