Donald Trelford on The Press: The Mosley ruling is not the final word on our lives' private parts
Monday 01 September 2008
Mr Justice Eady, whose verdict in the Max Mosley privacy case has cast the whole of our red-top press into limbo, guards his own privacy pretty well. His Who's Who entry doesn't mention any recreations (presumably not S&M) or even his address. Yet, the Mosley decision could have a devastating effect on papers like News of the World, which rely on sexual disclosures as a large part of their raison d'être. Isn't there a public interest in knowing more about the man who has cast such a gigantic shadow over the commercial fortunes of our popular press?
His judgment in that case, which I have just enjoyed reading in its entirety – and I really mean enjoyed, since it is dotted with amusing asides – is a bombshell for newspapers. What it says is that papers cannot write about anyone's sex life, whether they are public figures or not, unless criminality is involved. He says explicitly: "It is not for the state or the media to expose sexual conduct which does not involve any breach of the criminal law". He goes on: "The fact that a particular relationship happens to be adulterous, or that someone's tastes are unconventional or 'perverted', does not give the media carte blanche".
The key phrase in the judgment is that everyone has "a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property". Reading the transcript, I couldn't help feeling that the News of the World journalists did not put the public-interest case very well, or even at all. The fact that they did not keep notes or tapes of the key conversations about the alleged Nazi connection suggests a degree of sloppiness that surprises me in such an experienced investigative journal.
In fact, my first thought after the case was that James Murdoch, the head of News International, had missed a trick in failing to dismiss the editor, Colin Myler. At one stroke he would shown that he was not a Rupert clone and would have earned himself some brownie points with those who concern themselves with press standards and responsibility.
There were parts of the Eady judgment, however, that struck me as odd and possibly contradictory. When assessing damages, for example, he said he had taken account of the fact that Mosley's conduct might be seen as "reckless and almost self-destructive". This made me think that maybe the people who elected Mosley to his job as the head of motor racing were entitled to know that he behaved like that.
The question of criminality was also an issue – albeit one that the judge dismissed for lack of evidence. Was the place where these events took place a brothel within the meaning of the act? All the law requires for a place to be a brothel is that there is more than a single customer. It had been used at least eight times before the day the recording took place; did none of those occasions involve another man?
I mention this to show how easily the case could have gone the other way and why, therefore, it cannot possibly be the last word on privacy and the press. I am reinforced in this view by a prescient article which Eady himself wrote in 1996. He had been a member of the Calcutt committee, which came very close to imposing statutory controls on the press. Afterwards he wrote about the likely effects that the European Convention on Human Rights would have on the concept of privacy.
"The entitlement to respect for privacy and family life," he wrote, "is an important human right and it is surely undesirable to leave such a matter in a democratic society to the vagaries of judicial development". He concluded: "What is 'necessary in a democratic society' is best left to those who are democratically elected; and especially so when a positive decision has been taken by the government not to legislate." He also warned that interpretation of the right to privacy "should not be left to develop in accordance with the subjective impressions of individual judges".
Yet, that is exactly where we are after the Eady verdict on this and earlier cases – puzzling our way through "the vagaries of judicial development" and the "subjective impressions of individual judges".
There was an extraordinary article buried inside The Sun last week. It revealed the shocking way asylum-seekers were being treated in Hastings. I had to go back to the masthead to make sure I wasn't reading The Guardian or this paper. What can this mean? Could it be that newspapers are belatedly beginning to realise that sections of the public really don't like them and that there may be value in being nice rather than stoking up prejudices?
What next? A sympathetic feature in the Daily Mail on the problems of families living on benefits? Actually, there was a report last week that there are six million households wholly dependent on state handouts, so it might even be good for business to woo such readers. I wouldn't count on it, though.
These are tough times for charities, so the Journalists' Charity, working with the London Press Club, has done well to get such big-name sponsorship for this year's Press Ball, from Camelot, Barclays and Volkswagen, who will auction the new Golf. It will be held at the Natural History Museum on 15 October. Jeremy Vine is the presenter, Lord Dalmeny of Sotheby's will conduct the auction and the opera star Natasha Marsh will sing. Tickets and tables from Entire Affair at firstname.lastname@example.org or on 020-8429 7520.
'Press Gazette' deserves support
Congratulations to Press Gazette on its new monthly, subscription-only, 64-page format.
It had a scoop in its first issue with an interview with Sly Bailey, the secretive head of the hard-pressed Trinity Mirror group.
I've always had a soft spot for Press Gazette, back to the days when it was called World Press News and was run by Colin Valdar, a former News of the World editor who was famous for writing one of the great newspaper headlines: "Go Unfrock Yourself, Vicar."
Tony Loynes has done a good job with the trade paper and deserves more support from journalists, who are accustomed to freebies and tend to share an office copy rather than buying their own.
Donald Trelford was editor of 'The Observer', 1975-93, and is emeritus professor in journalism studies at Sheffield University
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