The Case of Mosley v. News Group Newspapers Limited [2008] EWHC 1777 (QB)

By Julian Porter

British cases are fun. The Judges write with deadpan humour. Take the recent case of Mosley v. News Group Newspapers Limited (released on July 24, 2008 and cited above) per Mr. Justice Eady, the renowned British libel judge.

The Justice Eady describes the action:

[1] The claimant in this litigation is Mr Max Mosley, who has been President of the Fédération Internationale de l’Automobile (“FIA”) since 1993 and is a trustee of its charitable arm, the FIA Foundation. He sues News Group Newspapers Ltd as publishers of the News of the World, complaining of an article by Neville Thurlbeck in the issue for 30 March 2008 under the heading “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS”. It was claimed as an “EXCLUSIVE” and was accompanied by the subheading “Son of Hitler-loving fascist in sex shame”. It concerned an event which took place on 28 March, described variously as a “party” (by the Claimant and his witnesses) and “an orgy” (by the Defendant). He also complains of accompanying images published alongside the article.

[2] He sues additionally over the same information and images on the newspaper’s website, which also contained video footage relating to the same event. Reference is also made to a “follow up article” contained in the issue of 6 April headed “EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS”. This consisted primarily of a purported interview with one of the women who had been present at the event in question and had filmed what took place clandestinely with a camera concealed in her clothing, which had been supplied by the News of the World. It is relied upon primarily in the context of aggravation of damages and in support of a claim for exemplary damages.

[3] The cause of action is breach of confidence and/or the unauthorised disclosure of personal information, said to infringe the Claimant’s rights of privacy as protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). There is no claim in defamation and I am thus not directly concerned with any injury to reputation.

[4] It is argued not only that the content of the published material was inherently private in nature, consisting as it did of the portrayal of sado-masochistic (“S and M”) and some sexual activities, but that there had also been a pre-existing relationship of confidentiality between the participants. They had all known each other for some time and took part in such activities on the understanding that they would be private and that none of them would reveal what had taken place. I was told that there is a fairly tight-knit community of S and M activists on what is known as “the scene” and that it is an unwritten rule that people are trusted not to reveal what has gone on. That is hardly surprising. (It is apparently more common nowadays to refer to “BDSM”, a term which embraces bondage, discipline, domination and submission or sado-masochistic practices, but I shall continue to use the more familiar “S and M” for convenience.)

[5] It is alleged against the woman in question (known as “Woman E”) that she breached that trust and that the journalist concerned must have appreciated that she was doing so. That could not in reality be disputed, since the whole object of supplying her with a concealed camera, and instructing her how to use it, was to ensure that she could record the events without being suspected by her fellow participants.

[6] Against that background, it is clear that the present claim is partly founded, as in McKennitt v Ash [2008] QB 73, upon “… old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information”: see e.g. ibid at [8], per Buxton LJ.

The Court weighed the relevant competing Convention rights in the same manner as our courts weigh Charter rights. No one Convention right takes automatic precedence over another.
There are two competing rights under the European Convention. Article 8 protects privacy and Article 10 protects freedom of expression. Neither right necessarily trumps the other right. In Britain now it can no longer be said, as per Lord Denning, M.R. that there is “a public interest that the truth should out”.

[44] The principal factual dispute between the parties related to the allegation in the News of the World that the 28 March session had a Nazi theme. This was vehemently denied by the Claimant and by the four women called by him at the trial under the names Women A to D. It had been thought until the fourth day of the trial that evidence to the opposite effect would be given by Woman E, who had been fitted out with the camera to make the video recording and who was ultimately paid a total of £20,000 for her co-operation. Reliance was also placed by the Defendant on the content of the recording itself. On the fourth day, however, Mr Warby (counsel for News Group) indicated that no further reliance was to be placed on Woman E or the proposition, advanced vigorously up to that point, that the Claimant had actually “ordered” or requested a “Nazi” or concentration camp theme. It was confirmed also that it was no part of the Defendant’s case, either, that Woman A had passed any such instruction on to Woman E.

[49] Women A and D gave evidence about the attractions and excitement of S and M role-play. Woman A said that, after receiving whatever number of strokes she had set herself as a target, it was “the best feeling in the world”. She referred to children playing games, citing the example of “cowboys and Indians”. At all events, what took place on 28 March was very much a “game” of two halves, with the Claimant in the first scenario playing the submissive and in the second adopting the dominant role.

[50] There was a suggestion that some of the women were wearing Nazi clothing, but Mr Thurlbeck himself (the writer of the story) ultimately recognised in a memo, after publication, that what was worn was simply “foreign uniform and ordinary blazer”. He had been addressing in the same email the rather incongruous possibility of a “Nazi blazer”. As the Claimant himself pointed out, if there had been a desire to create a Nazi scenario it would have been easy to obtain Nazi uniforms online or from a costumier. The uniform jacket worn by Woman E had been in her possession before either the 8 or 28 March gatherings were organised and had not been obtained specifically for that purpose.

[51] The facts that the jacket corresponded to the modern Luftwaffe uniform and that German was spoken in the second of the two scenarios acted out on 28 March cannot be identified with Nazism. As Woman B observed, and most Germans would agree, it is inappropriate and offensive to equate everything German with the Nazi era. Mr Thurlbeck’s answer, on more than one occasion, was that everything has to be seen “in the round”. I take that to mean that notwithstanding the absence of specifically Nazi or concentration camp indicia a reasonable person would still view the overall exercise as Nazi role-play. He said that this was to be regarded merely as “am drams” and the Claimant had been let down by his wardrobe department, with the result that the clothes (whatever they actually were) should be regarded as “pretend” Nazi uniforms. This is an approach that is not uncommon when witnesses in court are trying to defend a certain position under cross-examination. If it is believed that a particular state of affairs came about, it becomes necessary to explain away any indicators to the contrary. Here, simply because it is assumed that there was Nazi role-play, non-Nazi clothes have to be explained as “pretend” Nazi clothes.

[52] In the first scenario, when the Claimant was playing a submissive role, he underwent a medical inspection and had his head searched for lice. Again, although the “medical” had certain unusual features, there is nothing specific to the Nazi period or to the concentration camps about these matters. Moreover, no German was spoken at this stage — not least because Woman B appeared later, in time only for the second scenario.

[53] Mr Thurlbeck also relied upon the fact that the Claimant was “shaved”. Concentration camp inmates were also shaved. Yet, as Mr Price pointed out, they had their heads shaved. The Claimant, for reasons best known to himself, enjoyed having his bottom shaved — apparently for its own sake rather than because of any supposed Nazi connotation. He explained to me that while this service was being performed he was (no doubt unwisely) “shaking with laughter”. I naturally could not check from the DVD, as it was not his face that was on display.

Can you imagine any judge in Canada writing this paragraph?

[67] There was, of course, plenty of spanking, and references to “judicial” penalties, but the only passage which is relevant for this purpose relates to an occasion when one of the women was lying face down on the sofa while being given intermittent and rather lack-lustre strokes with a strap. There seems to be some sort of game involving rivalry between blondes and brunettes. At one point, the dark-haired woman lying on the sofa raises her head and cries out “Brunettes rule!” Within a moment or two, a voice from off-camera can be heard (accepted to be that of Woman A, who is indeed blonde) gasping out words to the effect “We are the Aryan race — blondes”.

[68] Not surprisingly, this has been fixed upon by the Defendant as being a reference to Nazi racial policies. It is said that the reference to “Aryans” cannot bear any other interpretation.

[69] When asked about this, the Claimant said that he had no recollection of any such remark being made and, indeed, that it was perfectly possible that his hearing aids would not have picked this up in all the excitement. This naturally invites a certain degree of scepticism, although there is no doubt that the Claimant is a little deaf (as emerged during the course of his evidence) and does wear hearing aids.

[70] What is clear, however, is that the remark was unscripted and that it occurred amid a good deal of shouts and squeals (of delight or otherwise). One had to listen to the tape several times to pick out exactly what was going on and indeed nobody had spotted “Brunettes rule!” until the middle of the trial. It is also clear that there was nothing spoken by the Claimant on this occasion which reflected Nazi terminology or attitudes. There is no reason to suppose that it was other than a spontaneous squeal by Woman A in medias res.

Only in Britain do they write about a “spontaneous squeal”.

One of the women who filmed the session was offered £25,000 by News Group. It recanted and paid only £12,000 and the judge deals with this with much irony.

[65] It was put to the editor and Mr Thurlbeck that the reason why Woman E was only paid £12,000 after she delivered the video material, despite having been offered £25,000 previously, was that they had been disappointed by the lack of Nazi content — a pertinent question. This was denied and the editor gave the reason that they like to renegotiate downwards, when in a strong bargaining position. They were affected by the credit crunch like everyone else.

I enjoy British judgments because judges express pithy reservations about people’s credibility. The writer of the piece was being cross-examined on his witness statement and he had begun to wiggle. The judge said, “There was yet another passage in Mr. Thurlbeck’s evidence which is hard to swallow.”

Mr. Justice Eady expresses an un-Canadian flare for hyperbole:

[113] Perhaps the most artificial argument, verging on desperation, was to the effect that the Claimant was inciting or aiding an offence of assault occasioning actual bodily harm contrary to the Offences Against the Person Act 1861 — on himself. There was actual harm and perhaps the application of the large piece of elastoplast on his right buttock would demonstrate, as Mr Myler and Mr Thurlbeck pointed out, that there had been actual wounding as well. (That might be the case also, technically, with decorative piercings.) One must try not to lose all touch with reality, and no-one could pretend that this was either the original reason or a justification for the clandestine filming or the coverage.

Justice Eady, in summing up, had some interesting comments about the plaintiff and the pursuit of this action:

[226] To a casual observer, therefore, and especially with the benefit of hindsight, it might seem that the Claimant’s behaviour was reckless and almost self-destructive. This does not excuse the intrusion into his privacy but it might be a relevant factor to take into account when assessing causal responsibility for what happened. It could be thought unreasonable to absolve him of all responsibility for placing himself and his family in the predicament in which they now find themselves. It is part and parcel of human dignity that one must take at least some responsibility for one’s own actions. On the other hand, I have no evidence to suggest that the surveillance he was warned against had any connection with Woman E or the News of the World.

[230] I am conscious naturally that the analogy with defamation can only be pressed so far. I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on.

The Judge ordered £60,000 to Max Mosley. However, the costs are immense and are presumed to be £850,000. Justice Eady ordered a first payment of £200,000. No doubt there will be an appeal.