Max Mosley appeared before the Culture, Media and Sport Committee yesterday to talk about the exposure of his private life by the News of the World last year, his successful privacy action and the law on privacy generally.
Mosley argued that newspapers should be required, before publishing stories like his, to contact the subject of the planned revelations before publication; he says it’s essential people have a right to challenge disclosure in advance because no post-publication remedy can possibly give sufficient compensation. Once privacy is lost, it’s lost for ever. There’s no putting the egg back together.
I think he’s right. A great deal of rubbish has been talked since the Mosley judgment, a large percentage of it by Paul Dacre. We now have privacy law, yes, not one brought in by the back door, but one openly voted in by Parliament in the Human Rights Act. This privacy law does not constrain investigations into wrongdoing, or into any behaviour that there is a genuine public interest in exposing; what it does constrain is simple intrusion into people’s sex lives for fun and titillation.
My concern from the start has been the way the press can avoid legal constraints, even by leaking a story in advance of publication, and that Eady J’s judgment was if anything too friendly to the press. The level of damages and costs Eady J awarded in the Mosley case is not enough to deter newspapers from exposing people’s sex lives. I agree with Mosley that the law should develop so as to punish newspapers if they fail to give the subjects of their stories a chance to seek legal remedies in advance of a publication interfering with private life. The rules would have to be sensibly drawn, of course, to deal with difficult borderline cases and with those rare cases in which a delay in publication might be against the public interest. But I think Mosley’s basic principle is sound.
Eady J himself showed the way forward in his judgment: we should insist on responsible journalism, but in return, take responsible behaviour into account when weighing what may be published. A future Max Mosley should have to meet a fairly high test in order to succed in prior restraint; but no defence of responsible journalism should be available to those who act irresponsibly by rushing to publication in any attempt to evade human rights, and examplary damages should be available if a future Max Mosley succeeds after publication, having been unjustifiably denied a chance to restrain publication in advance.
I wish Parliament would legislate to achieve this. But I can also imagine this kind of approach could be developed by judges – and I think they’d be right to do so.