The right to orgy

I wasn’t really expecting this to become a sex, planning and mental health blog, but what can I do? Today’s long expected decision upholding Max Mosley’s claim for breach of confidence against the venerable News of the World is a key example of a statutory human rights law having a transformative role on ordinary law and, through it, ordinary life. It’s possible that, with this case, the UK tabloids will reel back some of their most intrusive reporting on British celebrities. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 is a perfect example for Bob Carr and James Allan to use to criticise the horror of rights-crazed activist judges. Off you go! [EDIT: And now Allan has. Naturally, his column downplays the judge’s finding that the NotW was wrong about the ‘Nazi’ claim, as such factual issues get in the way of Allan’s agenda of portraying all human rights cases as exclusively about values. .]

Mosley’s celebrity status is (or, more accurately, was) due to his Presidency of the FIA, which runs Formula One racing (including Melbourne’s own Grand Prix? Beats me.) This, it seems, was reason enough (if a reason was needed) for NotW to expose Mosley’s penchant for S&M, complete with pun-laden front-page and inside-the-fold spreads (“THE PITS!”), photos (“TEA-TIME: Mosley after orgy) and, on its website, video footage of a couple of recent get-togethers (albeit with the naughty bits sensitively obscured by chequered flags.) Unsurprisingly, Eady J found that this engaged Mosely’s right to privacy under the ECHR, which is similar to Victoria’s Charter s. 13(a):

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…

Eady found that sexual conduct in private is (or, in Mosley’s case, was) pretty damn private and that clandestine recordings are a pretty big interference. He rejected arguments that Mosley’s orgies weren’t so private, due to the involvement of multiple people, video cameras and money. He also noted that a NotW journalist’s subsequent threats to name other paid participants in the orgy unless they gave an interview was also a breach of their human rights (not to mention, most likely, the law on extortion.) The significance of this is that it brought Mosley’s claim within the modern human-rights-crazed British law of confidentiality, which now protects confidentiality even when there’s no pre-existing relationship between the claimant and the defendant. (It should be noted, though, that Eady also found that Mosley’s claim was also within old-style confidentiality law, due to his contract with the rogue hooker – woman E – who spilt the beans to NotW for £25,000.)

That wasn’t the end of the matter, of course, as NotW could rely on a human right of its (or, more precisely, its readers’) own, the ECHR equivalent to Charter s. 15(2):

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds…

The balancing of privacy and expression came down to whether there was a public interest in Mosley’s private practices. Eady quickly dispatched of NotW’s claims that Mosley’s parties needed to be outed for their criminality, depravity and adultery. (Mosley’s wife was the only one with a particular interest in the latter.) But NotW had another angle, both in its papers and in court: that Mosley’s parties were, NotW alleged, Nazi-themed. This fact gained some significance in Mosley’s case because, according to NotW, his family had Nazi links: indeed his parents were married at Goebbels’s place with Hitler as a guest of honour.

Alas, for NotW, Woman E didn’t testify at the hearing, so the paper had to rely on the video. Eady’s approach was to studiously compare the video (of an alleged concentration camp scenario) to actual life in a concentration camp. The role-playing failed to match-up, what with the ‘judicial scenario’ (Mosley was apparently in a concentration camp for crimes, rather than ethnicity); the English names for various players; and even the horizontally striped uniforms (whereas the real camps used less flattering vertical stripes.) There was, of course, the small matter that various conversations occurred in German (albeit with sexual, rather than genocidal, content) and that one of the women yelled out that she was ‘an Aryan blonde’ (although that followed another woman’s claim that “Brunettes rule!”, which doesn’t entirely capture the full philosophy of Mein Kampf.) But, as Eady sensibly pointed out, if Mosley had wanted a Nazi theme, then there were plenty of places in Britain where he could get actual Nazi costumes (as all royal followers well know.) The result: he got a tidy damages pay-out and NotW were also up for Mosley’s yooge legal fees. (NotW avoided exemplary damages, though, because Eady accepted that they really did think Mosely was a Nazi.)

So, does that mean that Victorian celebrity S&Mers can now orgy with peace of mind? Alas, no, due to the technical human rights issue of ‘horizontal effect’.A key – indeed the major – difference between the UKHRA and the Charter is that the former’s conduct mandate applies to courts, whereas the Charter’s doesn’t (apart from the courts’ adminstrative functions.) The official reason for this difference is some constitutional claptrap. But the underlying policy issue (apart from, I suspect, keeping the courts onside) is that the Victorian Charter is meant to be about protecting people from the state (‘vertical effect’), rather than from other people (‘horizontal effect’). I’ve complained elsewhere that the method of implementing this distinction in the Charter – exempting courts ‘non-adminstrative’ functions from the definition of public authority, and hence the conduct mandate – is silly, as courts themselves often protect people from the state (and, sometimes, they are the state that people need to be protected from!) But, on this occasion, the Charter’s exemption for courts works the way it’s supposed to, preventing Victoria’s courts from being obliged to develop the common law on breach of confidence like their counterparts in the UK have. 

That doesn’t mean that there are no horizontal effects that might flow from the Charter’s right to privacy. As Evans and Evans point out, the interpretation mandate isn’t limited in this way, so statutes that regulate actions between people may be re-interpreted in a way that ensures that people respect eachothers’ rights. But, although lots of Victorian statutes regulate confidentiality, those statutes are all about information held or procured for reasons other than the public’s right to know. Victoria’s defamation law, however, is statutory, so maybe there’d be an angle there. (Mosley didn’t sue NotW for defamation, even though he claimed that his major gripe was the allegations about Nazism.)

It’s worth noting that Victorians’ rights to private orgies is also protected by a Commonwealth law, the weird Human Rights (Sexual Conduct) Act 1994, which states:

4(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

(The reason I say this law is weird is because it was passed solely to override state laws criminalising sodomy, which could have just been done with a law saying exactly that. Nevertheless, someone – a closet orgiest, perhaps? – convinced the Keating government that a much broader law was needed!) Now, I think it could be reasonably argued that this provision affects, not just the statutes of Australia, but also the common law of Australia. However, I don’t think that this would mean that Australia’s common law on breach of confidence must be developed (in the case of adult sexual conduct) along the lines of Britain’s. This section still seems to operate as a shield against legal action, rather than a sword. The ECHR right to privacy, by contrast, not only bars interferences in privacy, but also gives a right to ‘respect’ for privacy. That being said, the effects of the Cth statute are, as yet, untested.

2 thoughts on “The right to orgy

  1. The worrying thing about this decision is that it could sound the death-knell for that great British artform, the tabloid expose of legal but squalid behaviour. Where would we be without Fergie’s foot fetish? Charles, Camilla, and the tampon? Squidgie?

    Re suing for libel, he apparently is planning to do that. I can see a reason for splitting his causes of action in this way. Armed with this decision he might be able to force a settlement and apology from the paper without ever having to sit in a box and be cross-examined, convince a jury etc. It is arguable that there is an element of double-dipping, even though this compensates him for the breach of privacy and a libel action is directed to the damage to his reputation. Perhaps in the future these actions will in practice (if not in theory) merge.

    Some minor factual quibbles:

    * Re the exemplary damages point, see [172]-[197] where Eay J says they’re not available at all. The defendant’s conduct is a relevant issue when considering aggravated damages. This area is still evolving, and Eady J makes some interesting remarks on relevant principles at [212]-[236], particularly on the utility of defo and PI awards as comparators. Re the NoTW’s belief, see [170] in which Eady J says the Nazi belief was not a reasonable one.

    * Mosley’s father isn’t alleged to have had Nazi links – he was the founder of the British Union of Fascists, and was interned during WW2. Mosley’s maternal aunt was in love with Hitler and shot herself in despair when war broke out (to even things up ideologically, another maternal aunt was a communist journalist).

    * vertical stripes are more flattering than horizontal – they make you look longer, slimmer and sleeker.

  2. Ah yes, you’re right about those stripes (amongst other things.) Art Deco and all that. My sole thinking on stripes was that Obelix wears vertical stripes (to little apparent effect.)

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