British tabloid newspaper publishing practices are in the news again, following the judgment in yesterday's highly-publicised ruling of Mr Justice Eady in Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB).

Right: in a desparate attempt to deflect press attention from his next orgy, Max Mosley and his friends resort to a cunning disguise

Max Mosley, President of the Fédération Internationale de l'Automobile (FIA) since 1993 and a trustee of its charitable arm, the FIA Foundation, objected to the publication of an article in the News of the World newspaper. This article, headed 'F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS', was billed as an exclusive and ran under the subheading "Son of Hitler-loving fascist in sex shame". The article in question concerned an event, described as a party by Mosley and as an orgy by the newspaper. The text was accompanied by images taken from clandestine video footage and a concealed camera at the event itself. A sequel, published the following month under the banner "EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS", was mainly a purported interview with one of the women who participated in the event, who had filmed it with a camera supplied by the newspaper and concealed in her brassiere.

Mosley alleged breach of his of privacy under Article 8 of the European Convention on Human Rights (ECHR), seeking exemplary damages. He argued that the content of the published material was inherently private in nature and that there had existed a pre-existing relationship of confidentiality between the participants. The public display of this private event was thus unlawful.

Eady J, awarding a new UK record sum of £60,000 damages, agreed. In his 236-paragraph judgment he said as follows:
* The clandestine recording of sexual activity on private property was a proper subject-matter for the engagement of Article 8 of the ECHR.

* The woman with the concealed camera had committed an "old fashioned breach of confidence" as well as a violation of Article 8 of the ECHR.

* Mosley had a reasonable expectation of privacy in relation to his sexual activities, albeit unconventional, carried on between consenting adults on private property.

* There was no evidence that the event was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes; nor indeed was it so. There was some bondage, beating and domination which seemed to be typical of sado-masochistic (S and M) behaviour -- but there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or indeed for the placing of the video extracts on the News of the World website .

* The mere fact that this behaviour was viewed by some people with distaste and moral disapproval gave no justification for the intrusion on Mosley's personal privacy in the light of modern rights-based jurisprudence.

* Exemplary damages were not available in a claim for infringement of privacy.
This decision has been criticised in many quarters as destroying the ability of the UK press to reveal the shady facets of publicly prominent figures, suggesting that revelations of the pecadillos of politicians might now go unannounced. The IPKat wonders whether this criticism is founded on the assumption that we might be kept in the dark as to significant information that would cause the electorate to lose confidence in its leaders. If so, it seems that the countervailing public interest is also protected under the ECHR and we have -- at least in theory -- nothing to worry about. In this case, nothing turns on whether Max Mosley attends orgies, keeps sheep in his living room or eats prunes for breakfast and the decision looks right. We have all become habituated, indeed well-nigh addicted, to a constant flow of personal information concerning so-called celebrities; perhaps we should ask ourselves why this is so.

Merpel wants to know this: presumably each revelation by the News of the World brought attention and an increase in advertising revenue and web-traffic. Even if it has to fork out £60,000 plus an estimated £830,000 in costs, it must surely have profited pretty healthily from this escapade. Can anyone confirm this?

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  1. A tangential question about IP, here.

    Sometimes, after high profile court trials in the UK, the police release snippets from custody interview recordings. (This has happened quite recently in the Darwin fraud trial).

    Who owns the copyright to these recordings?

    Does anyone know? Surely it should be the accused.

  2. Funnily enough, they only seem to do it when the defendant has ben found guilty. And that before the chance of an appeal to be heard. I'm
    always "uncomfortable" when a rather smug detective stands and says "we're very glad that he/she/they were found guilty". Why? Guilt or not is irrelevant to the police who should neutrally gather the facts and/or evidence and not seek a "result!". Perhaps IP lawyers should later reveal secret discusions of their successes?
    But I digress...


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