Kiss-and-tells will live on

John Lisners was an investigative reporter who retrained as a lawyer and now advises Fleet Street. He gives his views on the Max Mosley case
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The Independent Online

So, does Mr Justice Eady's decision last week in favour of Max Mosley's right to privacy really threaten press freedom? Not in my opinion.

His judgment was about proportionality, responsibility and the rights of privacy entrenched in the European Convention on Human Rights. In determining these rights, he examined with forensic precision the full shock-horror sex exposé written in the finest tradition of an old fashioned News of the World scoop.

He then applied the law, awarding a fairly modest sum of £60,000 to Mr Mosley, which may even have surprised some of the judge's more outraged critics.

Mr Justice Eady's 54-page judgment is essential reading for all those involved in the media. But on examination, it is clear he was far from convinced that the story headlined "F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS" was in the "finest traditions" of the newspaper.

The News of the World has never been shy about courting controversy. Like its sister paper The Sun, its budget for stories is the envy of other tabloids on Fleet Street. As a consequence it usually gets its stories right, but not, as the judge found, in this instance. The problem was the lack of evidence that Mosley had indulged in a Nazi orgy, even if he is the son of Sir Oswald Mosley, the fascist leader.

Linking fascism to the sadomasochistic orgy was the vital ingredient that the story needed to justify the intrusion into Mr Mosley's private deviance, which was practised behind closed doors and among consensual adults. Unfortunately for the newspaper, the main informant identified as "dominatrix E" was unwilling to corroborate its version of events.

How different things would have been had the News of the World been able to supply evidence of a fascist theme, considering the hurt that such behaviour would have caused the millions who still suffer from the effects of the Holocaust. There would then have been a strong case for exposing Mr Mosley's private actions, and the weight of public opinion would, I venture, have solidly backed the newspaper. But on this occasion the judge found no evidence to support the thrust of the paper's story and was unimpressed by the verbal evidence of its editorial staff. In newspaper terms, they cocked it up and paid the price.

Further, without the peg of fascism, the judge's hands were, figuratively speaking, tied. Article 8 of the Convention allows everyone the right to respect for his private and family life without the interference of public authorities (or newspapers). Like all rights, these are subject to limitations that would also apply to the right of newspapers to publish matters where there is a legitimate reason for doing so. Article 10 gives everyone, including newspapers, the right to freedom of expression, and again, this is subject to reasonable limitations.

The Convention was not introduced by Mr Justice Eady. Parliament enacted it in 1998 and as Judge Eady said: "... the UK government signed up to the Convention more than 50 years ago".

Eady was aware that he would come in for some considerable stick following his judgment. He understands newspapers well and used to advise the red-tops when practising as a barrister. He was therefore careful to emphasise that this was not a landmark decision and he was not prepared to give Mr Mosley aggravated or exemplary damages.

While he may well have thought that Mosley brought many of his problems on himself (having been warned by friends that he was being investigated), the judge agreed that there had been an infringement of his right to privacy and emphasised the balancing act required between Articles 8 and 10. Aside from the distasteful emotional context of Mr Mosley hiring five dominatrices for an S&M orgy, should this attract less protection than say a homosexual orgy among consenting males whose sexual practices might be equally offensive to some people?

What Mr Justice Eady's decision emphasises is the need for editors to be aware of privacy rights and to be responsible and fair in their reporting. The question of privacy does not arise through this case alone. Recently there have been a number of successful injunctions brought by members of the public, including members of the press, seeking to stop the publication of private matters.

The question of intrusion has been one facing the media for a long time, and the tide is turning towards more responsible reporting. In the 1970s The Sun was criticised for its stance towards homosexuals. Eventually it got the message and changed its direction without loss of revenue and without complaining that press freedom had been compromised. There was a period in the 1980s when the News of the World was prepared to print a number of kiss-and-tell stories without fully checking their accuracy. Although heavily criticised at the time, the storm soon blew over and the newspaper changed course, having paid out considerable damages.

The risk of libel has always been there and now there is the additional matter of privacy, which although present through newspaper codes and legislation has not always been taken seriously. But tabloid editors will have to take note following the Mosley case. What they fear most is the rich litigator and an angry proprietor unhappy with the published story. They must now take more care with privacy issues and have the sense to examine how far they can push a story without detriment to the subject – or themselves.

Even so, it is unlikely that the present decision will inhibit newspapers from investigating genuine stories or doing the odd kiss-and-tell. All that it requires is proportionality and reasonableness. The two most successful groups, News Group Newspapers and Associated Newspapers, have vast funds at their disposal. As long as they get their story right, they should not feel threatened by the decision.

John Lisners is a lawyer and former investigative journalist and author. He advises several Fleet Street newspapers on media matters