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Moseley victory could protect other celebrities, says expert

Out-Law News | 28 Jul 2008 | 4:36 pm | 2 min. read

Motor sport boss Max Moseley's victory in the High Court over a filmed spanking session is a "major blow" to newspapers' rights to publish articles about celebrities' private lives, one legal expert has warned.

The High Court last week ordered the News of the World (NotW) to pay £60,000 in damages after it published a newspaper article and an online video which the court said violated Moseley's right to privacy.

Moseley had paid women to spank him in what the NotW claimed was a Nazi themed orgy. Mosely is the son of Oswald Moseley, the leader of the British fascists in the 1930s and 1940s.

Moseley disputed the Nazi claims and argued that the 'party' was private. Mr Justice Eady in the High Court found that the NotW had not proved the Nazi link, and therefore there was no public interest in the publication of what he said were details of a private matter.

"The Claimant had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property," he said in his judgment. "There was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website – all of this on a massive scale."

"There was bondage, beating and domination which seem to be typical of S and M behaviour… of course, I accept that such behaviour is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the Claimant," he ruled.

Litigation expert Damian Crosse of Pinsent Masons, the law firm behind OUT-LAW, said that the case would change the way that newspapers would have to approach such stories in the future.

"The legal impact of the case is very considerable. It is a major blow to a newspapers right to freedom of expression and in particular the kind of stories that are so frequently found in the redtops relating to the sexual activities of a sports person or other celebrity," he said. "In future any such stories will be in danger of being found to be in breach of the individual's right to privacy which is a fairly new concept introduced into English law by European legislation."

Traditionally there has been no right to privacy in the UK but the introduction of the European Convention on Human Rights to UK law via the Human Rights Act has led to a number of rulings establishing privacy protections.

The Human Rights Act and the Convention guarantee the protection of an individual's right to "respect for his private and family life". Cases involving model Naomi Campbell, actors Michael Douglas and Catherine Zeta Jones and new age singer Loreena McKennit have used this stipulation to protect celebrities' privacy.

Crosse said, though, that the Mosely ruling was more explicit than the protections  given to celebrities.

"Earlier cases such as the Naomi Cambell and Douglas's case have tended to skip round the central issue of an individual's right to privacy. In both these cases the individuals were successful but their damages were very low, £3,500 and £14,000 respectively," he said. "Mosley was awarded £60,000 which is the largest ever damages award for a breach of privacy case."

Though Mr Justice Eady insisted in his ruling that this was not a 'landmark' case, Crosse said that it will force newspapers to change.

"The most important aspect of the case was the fact the judge could see no public interest in the newspaper's decision to publish the story. Max Mosley was not sufficiently high profile a figure and in any event his sexual activities had no public interest element whatsoever," said Crosse.