Private Lives

Max Mosley is no stranger to controversy, having literally been born into it on April 13, 1940.

When Mosley was less than 10 weeks old, his famous and aristocratic parents, Lady Diana Mitford and Sir Oswald Mosley - thought to be Nazi sympathizers because of Sir Oswald's British Fascist movement - were hauled off to Holloway Prison under Regulation 18B, a wartime defense regulation that permitted such perceived enemies of the State to be detained without trial. For the first three years of his life, Max's parents would be in prison.

But the Mosley heritage never proved a shadow on Max's successful career in motorsport, leading to his election as FIA president 17 years ago. Indeed, as he told Atlas F1 in 2000, motor racing was the one arena where he could build a name for himself, rather than carry the burden of his father's reputation.

"There was always a certain amount of trouble [being the son of Sir Oswald] until I came into motor racing," Mosley said back then. "And in one of the first races I ever took part in there was a list of people when they put the practice times up as they do.

"Everyone stood around looking at the times. All the competitors in that class of racing looking at the list and they came to my name and I heard somebody say, 'Mosley? Max Mosley? He must be some relation of Alf Mosley, the coachbuilder.' And I thought to myself, I've found a world where they don't know about Oswald Mosley. And it has been a bit like that in motor racing: nobody gives a darn."

But now, at the age of 68, his father's fascist history and his mother's affinity to Adolf Hitler have become the raison d'etre for British tabloid

News of the World to run a highly embarrassing expose of Max with five prostitutes, which the newspaper labeled as "sick Nazi orgy."

Mosley described the current fix he is in with the Chelsea Girls by an explanatory letter to the ADAC, the German Motor Club, just after the controversy erupted:

"From information provided to me by an impeccable high-level source close to the UK police and security services, I understand that over the last 2 weeks or so, a covert investigation of my private life and background has been undertaken by a group specializing in such things, for reasons and clients as yet unknown. I have had similar but less well-sourced information from France.

[...]

It is against the law in most countries to publish details of a person's private life without good reason. The publications by the News of the World are a wholly unwarranted invasion of my privacy and I intend to issue legal proceedings against the Newspaper in the UK and other jurisdictions."

Who was the impeccable high-level source close to the UK police and security services that advised Max that he was the subject of a Sting? Could it be Lord John Stevens, former Deputy Constable of Cambridgeshire and Chief Commissioner of the London Metropolitan Police until January 2005?

Since leaving public service, Lord Stevens become the Constable of Choice for resolving all manner of UK investigations, in his capacity of Executive Chairman of Quest Ltd, a London-based Corporate Intelligence, Investigations and Risk Mitigation Company.

As of May 1, 2008, Max Mosley has added this most-renowned English investigator to his defense team, presumably to track down who was responsible for setting Max up.

To whom will the fruits of Lord Stevens' investigation be presented? Near-term, the audience is the FIA's General Assembly, called by Max Mosley to an Extraordinary General Meeting in Paris on June 3, 2008, where according to the FIA's Press Release "the full membership of the FIA will be invited to attend the meeting at which the widespread publicity following an apparently illegal invasion of the FIA President's privacy will be discussed."

Thus far, Quest has turned up the astonishing but not immediately relevant fact that one of the Chelsea Girls was married to an MI5 agent, who resigned from the force following the revelation. Anything more that Lord Stevens comes up with in the next week, would be helpful in the vote of confidence on Mosley that is expected to be taken by the FIA General Assembly on June 3rd.

The appointment by the FIA on May 5, 2008, of Anthony Scrivener, a barrister and a judge on the FIA's International Court of Appeal, "to undertake a full analysis of the available evidence relating to allegations in the News of the World that Max Mosley was involved in 'Nazi Style' activities" with the Chelsea Girls, is the latest pair of professional eyes looking at these facts in the run-up to the June 3rd Meeting.

But the main audience for whatever evidence Lord Stevens and Mosley's lawyer, James Price QC, instructed by Steeles Law in London, come up with is yet another famous Englishman, Justice David Eady, the High Court judge that has been presiding over the Mosley case in the Queens Bench Division, which is styled, Max Mosley v. News Group Newspapers Limited. News Group is the parent company of the News of the World newspaper.

Of the many High Court judges that could have conceivably been assigned Mosley's case, Justice Eady was the logical one because he has been almost single handedly developing the evolving law of privacy in the United Kingdom with landmark case after landmark case, particularly since the year 2000, when "privacy" rights began being imported into English law through Article 8 of the European Convention on Human Rights and Fundamental Freedoms entitled "Right to respect for private and family life."

Article 8 is short and sweet and states: "everyone has the right to respect for his private and family life, his home and his correspondence." Although the Law Lords in the highest English judicial body, the House of Lords, occasionally reverse or modify his rulings, Justice Eady is the acknowledged expert.

Justice Eady was a member of chambers at One Brick Court when he was in private practice, specializing in Media Law, so he is an experienced practitioner in this area of the law, both in the law office and in the courtroom.

Justice Eady has also learned a fair amount about Formula One during his judicial career, having presided over cases involving F1 players, including Tom Rubython (former editor of F1 Magazine and owner of Business F1 Magazine Ltd), ex-F1 Racing Editor Matt Bishop, and various FIA officials, including Tony Purnell, Richard Woods, and Allan Donnelly.

In disposing of these F1-related cases, which were of a commercial nature, he displayed a genial and avuncular nature and a willingness to move the cases along with alacrity to the extent it was within his power to do so, a trait very much to be hoped for by those who want the Mosley case to get to trial quickly.

Max's plan is to convince Justice Eady to conduct a five-day mini-trial, beginning on July 7, 2008, and the framework for his case is set forth in the allegations of the Particulars of Claim filed by Mosley's lawyers in High Court on April 21, 2008.

Getting Down to Cases

Turning to the individual landmark invasion of privacy cases that will govern the outcome of Mosley's claim, what is striking is how many of them involve celebrities we know from the Formula One paddock, including supermodel Naomi Campbell, Princess Caroline of Monaco, and film stars Catherine Zeta-Jones and Michael Douglas.

In Campbell's case, in a closely-divided decision, the House of Lords sided with the fiery fashion model, who was the subject of press reports in the Daily Mirror (including photographs) that she was being treated for a drug dependency, something she had publicly denied.

In that case, the Law Lords focused on a breach of confidence that had taken place - betrayal by an associate or fellow attendee at the drug treatment sessions - as part of the issue coming to light and characterized what happened to Campbell as "misuse of private information, an intrusion into her private affairs" and an unjustified invasion of privacy.

After stipulating that the London-born model is a household name, nationally and internationally, and that "whatever she does and wherever she goes is news," one of the opinions, that of Lord Hope, noted that even a celebrity like Ms Campbell has a "residual area of privacy," which the court should protect if its revelation would amount to a breach of confidentiality.

"The private nature of these [treatment] meetings encourages addicts to attend them in the belief that they can do so anonymously. The assurance of privacy is an essential part of the exercise ... the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected.

"It does not require much imagination to appreciate the sense of unease that disclosure of these details would be liable to engender, especially when they were accompanied by a covertly taken photograph. The message that is conveyed was that somebody, somewhere, was following her, was well aware of what was going on and was prepared to disclose the facts to the media."

Campbell was awarded a mere 3,500 GBP in damages, but significantly, she was able to have her legal fees - over a million pounds - paid by the newspaper chain, so she made her point, and paved the way for others.

In the case of Zeta-Jones and Douglas, the film star couple were married on November 18, 2000, and were intent on exercising tight control over their wedding photographs. However, Hello! magazine snuck into the wedding a photographer who took unauthorized pictures that later appeared in certain editions of the popular tabloid.

The Zeta-Jones/Douglas case was ultimately appealed to the House of Lords. In synthesizing the views of the majority of the Law Lords, Lord Nicholls concluded that the vice in the magazine's actions was that Hello! published images that no one but Zeta-Jones/Douglas had a right to publish, since it was a private event and the newlyweds had a right to confidentiality in the photographic images of their wedding.

Another Formula One observer, one of Mosley's fellow Monegasques, Princess Caroline of Monaco, also contributed to the jurisprudence of the European Court of Human Rights that Mosley will be citing in support of his right of privacy case.

Princess Caroline has been hounded by paparazzi and magazine journalists for years, and after a series of decisions and appeals in the German Courts (Caroline, married to Prince Ernst August of Hanover, is now a German citizen), Princess Caroline finally took her case to the European Court of Human rights.

One of the members of the House of Lords, Lord Justice Stephen Sedley, in a paper entitled "Sex Libels and Video-Surveillance" given for the Blackstone Lecture Pembroke College, Oxford, in May 2006, summarized the significance of Princess Caroline's case:

"The European Court of Human rights, to whom [Princess Caroline] finally went ... drew a single distinction between facts capable of contributing to public debate in a democracy and details of the private life of an individual, even a well-known one.

"Individuals, it held, had a legitimate expectation that their private life, whether in a secluded or a public place, would be respected, because it was something in which the public had no legitimate interest unless genuine public debate required it. What was more, the state had a positive obligation to ensure that this expectation was respected."

In Lord Justice Sedley's review, this decision and the steadily growing body of Human Rights Law jurisprudence "require the courts, as the limb of the state in whose custody the common law rests, to protect people's privacy against any incursions which are not justified by the free speech requirements of genuine public debate."

The countervailing cultural value to individual privacy rights are the freedom of expression principles that protect freedom of the press as reflected in Article 10 of the European Convention.

Lord Justice Sedley is not worried that the balance has swung too far in the direction of a right of privacy: "Britain has a press which is among the world's leaders in serious investigative journalism and which has more than once in recent years lanced unpleasant boils in the body politic. It also has a press which is the undisputed world leader in prurience and vulgar abuse.

"Nothing in my suggestions or in the developing privacy jurisprudence threatens serious investigation of issues of public concern: rather the reverse. If the long field-day of those who live and prosper by unwarranted intrusion into private lives is now drawing to a close, it will not necessarily be a bad thing...."

The British High Court

Joining this catalogue of British privacy cases and likely to further advance or retard Human Rights Law jurisprudence, is Mosley's case.

One April 9, 2008, Justice Eady issued the first of probably many written opinions on the case, and his opinion is doubtless destined to become a classic in the annals of privacy law.

Justice Eady skillfully weaved together - in as sober and straight-faced a fashion as possible - the salacious allegations of the News of the World with scholarly citations to cases and other legal authorities setting forth the common law and European Convention on Human Rights and Fundamental Freedoms:

"The News of the World published an article on 30 March 2008 with the headline 'F1 boss has sick Nazi orgy with 5 hookers'. ... The article was accompanied by a number of still photographs taken from the videotape...

I was given a copy of the edited footage ... It is very brief, containing shots of Mr Mosley taking part in sexual activities with five prostitutes, and it also covers the tea break. The events took place in the basement of a private flat near Mr. Mosley's home and thus, undoubtedly, on private property.

"The session seems to have been devoted mainly to activities which were conveniently described as 'S and M'. They lasted for several hours. The very brief extracts which I was shown seemed to consist mainly of people spanking each other's bottoms.

"Mr Mosley does not dispute that the events occurred, as portrayed in the edited footage, but he maintains that they were private and that the public display engages his rights under Article 8 of the European Convention on Human rights and Fundamental Freedoms (as it undoubtedly does).

"The proceedings and the application made before me, are thus based upon the alleged infringement of his privacy."

Having set forth the factual context of the case, Justice Eady lined up the Precedents - the Zeta-Jones/Douglas and Naomi Campbell cases - in trying to balance protection of "private information of a personal nature" with the free expression rights of the News of the World.

From Campbell's case, Justice Eady referred to what lawyers call "dicta" - a non-controlling aspect of the Campbell case that is nevertheless supportive of the result - and cited a hypothetical used in the Campbell opinion that might be closer to the mark in Mosley's case:

"I was reminded of a passage in the speech of Lord Hoffmann in Campbell v. MGN Limited, where he referred to a hypothetical case in which there would be a public interest in the disclosure of the existence of a sexual relationship (e.g. because of corrupt favours), but where the addition of salacious details or intimate photographs would be disproportionate to any legitimate purpose and unacceptable. He observed that these would be likely to be intrusive and demeaning - even if accompanying a legitimate disclosure."

Notwithstanding Justice Eady's recognition of a possible intrusion of Mosley's privacy rights by the Chelsea Girls, from the most recent iteration of the Zeta-Jones case in the House of Lords, Justice Eady cited and emphasized the genie-out-of-the bottle syndrome, the quandary that is a recurring theme in the privacy cases where, as in Mosley's case, the objective of the plaintiff is to obtain an injunction barring a publication from using a photograph or a video.

"Once intimate personal information about a celebrity's private life has been widely published it may serve no useful purpose to prohibit further publication," said Justice Eady, adding that "the Court must always be conscious of the practical realities and limitations as to what can be achieved."

In the end, having balanced the countervailing interests of a right of privacy vs freedom of the press, while finding that the material on the News of the World video was "intrusive and demeaning" and that "there is no doubt that the [privacy] rights of Mr Mosley under Article 8 come into conflict with those of the News of the World under Article 10", Justice Eady concluded that "the dam has effectively burst" as to the video, and that granting an order against News of the World restraining it from making the video available on its website "would merely be a futile gesture."

Thus ended Round 1 of the case of Mosley v. News Group Newspapers.

The French Connection

In addition to his application in the High Court in London, Mosley's counsel brought a similar action for injunctive relief in Paris and, in some ways, the Court in Paris granted Mosley more substantive relief than did the High Court in London.

In France, Mosley's claim is that publication of the News of the World materials is a violation of the criminal code, not just a civil violation. Sources close to the case report that Mosley's lawyers are also planning to bring proceedings in Italy, and possibly Germany, again claiming that publication in those countries is a criminal offense.

Joel Boyer, Assistant to the Presiding Judge of the Paris Court of First Instance, heard Mosley's request for injunctive relief, and, like Justice Eady, seemed sympathetic to Mosley's invasion of privacy arguments but dismissed part of the case before him for want of territorial jurisdiction, noting that Mosley is a resident of Monaco, and concluding that France, which is not a major market for News of the World, lacked sufficient nexus to the case to warrant entering an injunction against the British-based and owned News of the World website.

In a decision dated April 29, 2008, the French judge did however order the recall of any News of the World newspapers containing photos of Mosley and the Chelsea Girls in France, and, in disposing of the case, the judge the core privacy values that are at the heart of Mosley's case.

"Sexual relations between consenting adults constitute the most intimate part of one's private life and contain secrets and mysteries no one should be forced to explain to third parties who cannot judge another person's desires, fantasies or sexual fantasies," Justice Joel Boyer said.

"To allow the information on the ground that it constitutes the 'public's right to information' would not differentiate it from the human desire to learn of other's vices and would amount to turning our back on one of our most important liberties and the most basic respect for privacy, which is a part of it as contained in Article 226-1 and 226-2 of the Criminal Code which specifically aim at protecting this basic right as a sign of our civilization.

"The distribution in France of pictures taken from the recordings in question, as well as the high level of probability that Defendant's own statements indicating that other pictures taken from the recordings may be distributed in France, amount to a harmful act which justifies [this relief]."

The French judge ordered News of the World to advance 6,000 EUR in costs to Mosley and gave Mosley 30 days to bring further proceedings under the French Criminal Code. This, Mosley's legal team has done on Wednesday this week.

In conclusion, Boyer says: "There are times when the public's right to information takes precedence over the right to privacy, especially when the information is related to a person in a high-level position and there is a risk that their behavior may influence the manner in which they conduct public affairs.

"However, there can be no benefit for the public to see or hear scenes depicting sexual relations between consenting adults in a private location and for which the pictures taken, the communication and transmission without the concerned party's consent are criminal acts punishable in France."

If proved, these French Criminal Code violations carry a penalty of a maximum of one year's imprisonment.

The Court of Public Opinion

With Round 1 of the litigations in London and Paris - the injunction phase - behind us, Mosley and the lawyers for all sides move on to Round 2, which involves the merits of the case and damages.

Was there an invasion of Mosley's privacy? And, if so, will the News of the World and/or its parent company, News Group Newspapers Ltd, be made to pay money damages for the privacy violation? And in the case of the French courts, will Criminal Code violations be found?

Handicapping an all-out, no holds-barred scrap between the likes of Rupert Murdoch's Fleet Street powerhouse - News Group Newspapers Ltd - and its lawyers, against the formidable phalanx Max Mosley is developing - Lord Stevens and Steeles Law - would be more difficult than picking the winner of last year's world championship.

But, although Mosley has lost a few points in Round 1, the privacy law cases that are evolving in the UK and elsewhere in Europe contain much that is helpful to Mosley's side of the case in Round 2.

The real questions is, though, will Mosley be able to prove to the satisfaction of his other audiences - the FIA General Assembly, the F1 teams, the manufacturers, the sponsors, and, of course, Bernie Ecclestone - that he has been grievously wronged by News of the World and that the intrusions on his privacy rights have not and should not affect his continuation in office as President of the FIA until at least October, 2009, when he says he intended to step down anyway?

In the end, although it is often said that a lawyer who represents himself has a fool for a client, in this case it is clear that the ever-articulate Max Mosley is his own best advocate with the FIA's 222 motor clubs and the other various motorsport constituencies.

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- The Autosport.com Team

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