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The
Sunday Herald -
23 March 2009
"Courts make editors think hard before delving into private
lives"
Judiciary increasingly
taking the view that public interest must be stronger than potential
harm to subject
By Peter John Meiklem, Media Correspondent
FOR
MEDIA
lawyer Campbell Deane the moment motor racing boss Max Mosley's
privacy case against the News Of The World tipped into high
farce was when the paper's reporter outlined why he felt the
story was in the public interest
Says Deane: "He claimed that a criminal offence
had been committed. Namely, that the dominatrix had caned Mosley
so hard they had to put a plaster on his arse."
From that point
onwards the NOTW case looked desperate, Deane believes, a position
that only worsened when "Woman E", the alleged prostitute
who was supposedly paid by the paper secretly to film Mosley
taking part in a sado-masochistic orgy with five prostitutes,
failed to take the stand in the paper's defence.
Deane, like
most media lawyers and indeed most journalists not working for
NOTW owner Rupert Murdoch's News International, believes the
most salacious, and
perhaps controversial, of Sunday papers is heading for an expensive
fall. The case has centainly been enough to worry some editors
- Deane says he has been consulted by two in the past few weeks
about the emerging law.
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In exchange
for the invasion into his private life - as Mosley sees it -he
is seeking punitive damages, meaning an amount of money designed
to deter the NOTW, and indeed any paper, from gathering information
about somebody's private life when it is not in the public interest
to publish.
Although no-one
is yet brave enough to venture forth with a potential damages
figure, and leading Scottish editors are reluctant to discuss
the case until the verdict is announced, the effect on the media
has already been marked. Despite the fact punitive damages are
not awarded under Scottish law, the feeling is that the case
will change the relationship between the media and its subjects.
Privacy
could become, as one lawyer put it, "the new libel".
Although Madeleine
McCann "aguido" Robert Murat's £600,000 payout
last week from 11 newspapers after successfully suing for the
separate offence of defamation, editors are
being forcefully reminded to think longer and harder about what
stories papers can and should run.
Privately,
several senior newspaper executives now feel the Mosley case,
and the effect it will have in firming up a still embryonic
privacy law in the Scottish and English courts, will force editors
to consider the consequences of foraging through someone's private
life in search of a scoop.
In 2004, model
Naomi Campbell won a landmark breach of confidentiality case
against the Daily Mirror, after the newspaper published photographs
of her which were held to be in breach of her privacy.
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The Mosley
case marks another milestone in the still-evolving field of
privacy law. Based on article 8 of the European Convention of
Human Rights, which states an individual has a right to a private
life, the courts have been increasingly taking the view that
the public interest must be greater than the potential harm
caused to the subject of a story by publication.
Austin Lafferty,
another leading media lawyer, says NOTW editor Colin Myler simply
went too far with the Mosley story: "I am not myself a
fan or a practitioner of kinky sex but I do have a degree of
sympathy for Mr Mosley. My personal foible is Batman comics
but I wouldn't want to be pictured at a Batman theme party."
Star publicist
Max Clifford, who made his name selling sex and other scandal
stories to the red-tops, told the Sunday Herald that such a
law would be a good thing: "We are getting closer to a
privacy law in all but name. It is good to have a free press,
and I've broken more stories than any of them, but the subjects
- David Mellor the Conservative minister, for example - were
all in positions of genuine public interest.
"Now it's
all sensation and no substance and the public realise that.
The more irresponsible papers are the harder they make it for
themselves. I
mean who is Max Mosley? No-one had really heard of him before
this."
However, BBC
Scotland radio presenter and journalist Tom Morton - who was
himself the subject of salacious and fictitious allegations
about his private life published in The Sun - urged a note of
caution.
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