Max Mosley's S&M Party Not A Matter of Legitimate Public Concern, Says English Court

Admittedly, Max Mosley's lawsuit against an English tabloid is not the heartland of citizen media, but who can resist posting about a story that involves "sadomasochistic orgies, car racing, and Nazis," as Bill McGeveran puts it.  Mosley, the head of the governing body for Formula One racing, sued the News of the World for reporting in March 2008 that he organized a “sick Nazi orgy” with five prostitutes and for posting a surreptitiously recorded video of the party on its website. Mosley claimed that the S&M extravaganza had no Nazi theme and that recording and publishing the video and story violated his right to privacy under the European Convention on Human Rights. England's High Court ruled in Mosley's favor yesterday and awarded him £60,000 in compensatory damages and  £450,000 in attorneys' fees (ouch!). BBC news has a good article providing lots of background.

The big issue in the case was whether details about the S&M orgy were a matter of legitimate public concern. English law (or the English court's interpretation of the European Convention), like U.S. law, recognizes a defense to a publication of private facts claim when the matter publicized is newsworthy. The tabloid argued, reasonably enough, that a public figure holding a Nazi-themed sex party was newsworthy, especially when this public figure's father was notorious fascist Sir Oswald Mosley. Mosley argued that there was no Nazi element to the party and thus his private consensual sexual acts were not newsworthy.

The High Court agreed with Mosley on the facts, finding that there was "no evidence that the gathering . . . was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes." It agreed on the legal issue as well:

There was bondage, beating, and domination which seem to be typical of S and M behavior. But there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website - all of this on a massive scale. Of course, I accept that such behavior is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the Claimant. 

I wonder whether a U.S. court would reach the same conclusion on the newsworthiness issue.  My research suggests that, in publication of private facts claims, U.S. courts might recognize a similar zone of privacy for sexual activity, even when the person involved is a public figure or celebrity. See, e.g., Michaels v. Internet Entm't Group, 5 F. Supp.2d 823, 840 (C.D. Cal. 1998) (tape of Pamela Anderson and Bret Michaels engaged in sexual intercourse could form basis of claim, despite Anderson's celebrity status and her past playing roles involving sex and sexual appeal); Vassilades v. Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. 1985) ("Certain private facts about a person should never be publicized, even if the facts concern matter which are, or relate to persons who are, of legitimate public interest."). But see Restatement (2d) of Torts § 652D cmt. e ( "Thus an actor, a prize fighter or a public officer has no cause of action when his appearances or activities in that capacity are recorded, pictured or commented upon in the press. In such a case, however, the legitimate interest of the public in the individual may extend beyond those matters which are themselves made public, and to some reasonable extent may include information as to matters that would otherwise be private.").

Does it make any difference that the newspaper believed that the matter was newsworthy (i.e., that it involved Nazi role playing) even though, in the court's view, it wasn't? In most U.S. jurisdictions, there is no requirement of bad intent or recklessness in order to impose liability for publication of private facts. California is a notable exception; it requires a plaintiff to show that the defendant published private facts "with reckless disregard for the fact that reasonable men would find the invasion highly offensive." Briscoe v. Reader's Digest Ass'n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004).

Putting aside publication, under U.S. law, Mosley might have an intrusion claim or cause of action under a state wiretapping law against the newspaper for physically invading on his private affairs and secretly recording his activities. According to the Wall Street Journal Law Blog, Mosley's lawyers are preparing a follow-up libel action against the tabloid.


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