Max Mosley – “dogged and determined”

Raymond Snoddy – Max Mosley has come back to haunt his tormentors: “There is every chance that the judges of the Human Rights Court in Strasbourg could create the Mosley manoeuvre – a new extension of privacy law, which could turn out to be very onerous for the press”…

It is difficult not to have a certain grudging respect for Max Mosley, the former Formula One racing supremo, whose interests in sado-masochistic sex were exposed by the News of the World. He is nothing if not dogged and determined.

When surreptitious filming of Mosley beating and being beaten by prostitutes was posted on the NoW website and splashed in the paper in March 2008 you would have thought that was the end of the matter.

The youngest son of the British fascist leader Sir Oswald  Mosley had surely been caught “bang to rights” on camera and the only thing left for him to do was either curl up with embarrassment and withdraw from public life or emigrate. In an instant his interest in kinky sex became the defining characteristic of his life.

Instead he has come back to haunt his tormentors.

Later this year there is every chance that the judges of the Human Rights Court in Strasbourg could create the Mosley manoeuvre – a new extension of privacy law, which could turn out to be very onerous for the press.

Yesterday Daniel Johnson, editor of Standpoint magazine, without apparent irony accused Mosely of “colossal cheek” in posing as a supporter of press freedom.

If Mosley gets his way, and many legal specialists think the signs are he just might, the media in the UK would be required to notify people in advance before publishing stories about their private lives.

It could make it very difficult, if not impossible, to publish “kiss and tell” stories. The subjects, particularly if they are rich, would be off like a shot to the judiciary to get a blocking injunction.

The News of the World must have been so excited to get the Mosley story. It was the story that had everything – sleazy sex, money, power, sport – and the priceless ingredient, the apparent link with the fascist past, the holocaust and Nazi prison guards.

If the entire package had indeed been true in every respect there would probably have been no litigation in Strasbourg. A public interest defence would have carried the day.

Alas News of the World journalists let their imaginations run away with them and Mr Justice Eady found no evidence that “the gathering on March 28 2008 was intended to be an enactment of Nazi behaviour. Nor was it in fact.”

Once Mosley’s behaviour was reduced to mere eccentric sexual behaviour, as opposed to an insult to the victims of the holocaust, his privacy case was up and running.

Strasbourg observers note that the tone of judicial questions this week and the fact that the case is being fast-tracked and heard orally are all signs that Mosley has a good chance of succeeding.

If he does win again what happens next?

It will mean that in many cases judges rather than editors will decide which stories appear and which do not and the rows over two conflicting elements of the Human Rights legislation between the right to know and the right to privacy will get even more bitter.

Sleazy stories about minor celebrities and premiership footballers could dry up entirely. Judges could rule that mere infidelity is no longer a justification for raking over private lives in public.

The more important question is whether the Mosley manoeuvre will have a chilling effect on serious investigative journalism. In most serious cases allegations would be put to subjects as a matter of course and their response would be part of the story. The new situation would involve a legal obligation to do so rather than following best practice.

Lawyers argue that it would have been practically impossible in the Daily Telegraph‘s MP’s expenses scandal to put the details to every single MP though many were indeed contacted before publication.

But there are more fundamental complaints about the Mosley approach than that. It simply wouldn’t work.

Since Mosley began his legal odyssey, Wikileaks has burst upon the world and the internet has started to undermine the misuse of superinjunctons – injunctions where you are prevented from reporting the subject matter of the injunction itself.

If all the information is all over the internet, suddenly judges and their injunctions are not so all-powerful as once they were.

The irony is that Strasbourg may be about to extend the application of privacy law just as the coalition government in the UK is starting to make serious noises in the UK about the reform of Britain’s notorious libel laws.

This week deputy Prime Minister Nick Clegg promised sweeping reforms to relax libel to protect science academics and serious journalists from being “bullied into silence” by legal threats from big business or wealthy individuals.

Clegg is also promising to deal with the serious issue of “libel tourism” where non-UK citizens come to the UK to launch libel actions making UK libel law a laughing stock.

We will believe it all when it actually happens. Labour minister Jack Straw promised much and delivered very little.

What is now needed – particularly if Max Mosley gets his way – is a comprehensive look at all threats to press freedom in the UK, including superinjunctions.

We haven’t got a constitution but the content of the US first amendment might not be a bad place to start. It would certainly be a better place than the antics of someone fighting to protect their right to indulge in sado-masochistic sex between consenting adults in private.