We walk a fine line on public interest, but kiss and tell is dead

The privacy verdict in favour of Max Mosley has thrown the red-top reporting model into the melting pot, writes Andrew Scott

Last week's High Court ruling that a newspaper breached Max Mosley's privacy will strike at the core of the business model favoured by many red-top tabloids. It will put paid to most "kiss and tell" stories in mainstream publications, and may see them become little more than PR organs for celebrities on the make.

The ruling will radically affect what the press publishes, and perhaps how it operates at a more fundamental level. In particular, it will require journalists and editors to exercise much more caution over the use of film and photographs.

On the facts of the case, few have been surprised that the Formula One boss won. As the events in question took place on private property between consenting adults, it was straightforward for Mr Justice Eady to find that Mosley enjoyed "a reasonable expectation of privacy", irrespective of the "unconventional" nature of the relationships involved. The News of the World had also failed to prove clearly the supposed Nazi overtones to proceedings or, alternatively, that significant criminality had been perpetrated that would have overridden this privacy concern in service of the wider public interest.

Judge Eady indicated that the case did not set any new precedents, but rather involved merely the application of pre-existing, albeit recently devised, rules to peculiarly salacious circumstances. But his judgment offers admirably clear reflections on the state of the emerging law that will prove worrying for elements of the press.

First, there is the issue of the public interest. Reporting conduct by a powerful figure that many might consider inappropriate, immoral or even borderline criminal does not automatically meet the threshold. Stories must uncover plainly illegal conduct, prevent the public from being significantly misled by public claims hitherto made – as with Naomi Campbell's denials of drug use – or contribute to some important public debate.

The difficulty here is that there was a fine line. The News of the World considered that the supposed "depravity" of a public figure was enough justification to expose him publicly and perhaps shame him from office. Judge Eady demurred and was critical of the surreptitious methods used by the newspaper in pursuit of its story. But only a small shift in the factual circumstances would have seen the paper on firmer territory.

Thus, the public won't in future be informed that a politician is engaged in an adulterous relationship with a colleague, unless, for example, it is also demonstrated that the pair had feathered their love nest using public funds. John Pro-fumo or BP's Lord Browne would still probably have had to face the music, but would a future John Prescott or Piers Merchant? Meanwhile, errant footballers and other celebrities will be raising a glass.

Perhaps more profoundly, the judgment also makes clear that even where a newspaper is able to argue successfully that a story is in the public interest, it will still face a tough time defending the inclusion of intrusive photographs or video images. While there may be a good case for revealing the fact of wrongdoing to the general public, it will not necessarily follow that photographs of "every gory detail" will be thought to serve the public interest objective.

In this case, Judge Eady considered that none of the photographs or film published could be considered necessary to serve a public interest argument if that had been established.

The case suggests that British judges do not understand the tabloid press – or more likely that they understand it all too well, and simply don't like its typical mode of presentation. While in defamation law the House of Lords has indicated that leeway should be left to journalists on the question of how a story is told, in this context the judge seemed unwilling to allow such latitude.

This is important because the tabloid model is based on the telling of stories in a predominantly visual format. Indeed the title of leading German tabloid Bild –which was originally modelled on the Daily Mirror – translates as "picture-newspaper". The basic assumption is that photographs are an incredibly efficient means of conveying meaning. It now appears they will often be precluded.

In the aftermath of the ruling, a number of former tabloid editors have asserted that the law is less of a factor in the demise of kiss and tell than simple economics. Prurience, they contend, no longer sells newspapers. This seems to fly in the face of intuition. While the newspaper market may be in long-term decline, such assertions don't stack up against facts recounted by Judge Eady in this case: "Since releasing the Max Mosley orgy video on notw.co.uk, traffic on the site has increased by 600 per cent." The legal framework remains influential. For the future, editors will have to be mindful of the emerging law when deciding both whether to tell a story, and how to tell it. They will have to examine whether the degree of intrusion into someone's pri-vacy is proportionate to the public interest.

At the very least, they will have to delay publication until a real public interest component can be confirmed. This may be a good thing in terms of journalistic quality, but it pushes the editor against the cold commercial reality that news stories often have a short shelf-life.

A more fundamental problem, however, is that rather than second-guessing how a judge will view their performance after an "intense focus on the particular facts of the case", editors may instead decide just to spike the story or – despite Judge Eady's expressed hope to the contrary – never begin asking the question. There will be an impact on some investigative journalism. Sometimes this loss will act to the detriment to public understanding – a chilling effect on public discourse, where truth will not necessarily out.

That we are seeing a burgeoning privacy law in this country is hardly news. As Judge Eady highlighted, this isn't simply a case of judges running amok: Parliament quietly legislated for the shift when it introduced the Human Rights Act.

The emerging law is not – contrary to some misunderstandings that have gained currency following the judgment – a European imposition. The European Convention on Human Rights, to which the UK has been a signatory since the 1950s, was largely British in the penning. The Human Rights Act requires British judges to deploy not the European standards, but rather ersatz versions of the Convention rights. In doing so, they must take account of, but are not bound by, decisions of the Strasbourg court.

A second, significant concern is that it is being left to judges to decide what the public interest comprises, and also when the mode of telling a story becomes disproportionate. These decisions are made at a comfortable remove from the pressure of the newsroom. Arguably, these are political and editorial functions respectively, and not proper territory for judges alone.

But one thing is clear: the judgment sounds the last bell for kiss and tell stories.



Andrew Scott is LexisNexis's media law expert and co-author of 'Carter-Ruck on Libel and Slander'

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