House of COMMONS
MINUTES OF EVIDENCE
CULTURE, MEDIA AND SPORT COMMITTEE
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Taken before the Culture, Media and Sport Committee
Mr John Whittingdale, in the Chair
Mr Nigel Evans
Mr Adrian Sanders
Memorandum submitted by Mr Max Mosley
Witness: Mr Max Mosley, gave evidence.
Q119 Chairman: Good morning everybody. This is the second session of the Committee's inquiry into press standards, privacy and libel. We are pleased to welcome as our sole witness this morning the president of the International Automobile Federation, Mr Max Mosley. It is fair to say that Mr Mosley offered to come and give evidence to the Committee but it was an offer that we were very happy to take up and I would like to thank you for giving up your time to come here. The reports of the party that you attended suggested that it had a Nazi theme, something that you vigorously contested and that lay at the heart of the judgment. Given that that statement was untrue, why did you choose to use privacy law rather than a libel action?
Mr Mosley: The libel action, I was advised, would take probably two years to come on by which time, as far as I was concerned particularly internationally, the damage was done. It was very important to me to get the Nazi lie, because it was a complete lie and invention, nailed as quickly as possible. Because the court felt that had I had notice of what happened I would have got an injunction, the court listened sympathetically to an application that there should be an expedited trial and this enabled me to get the matter before a court before a judge, a full trial, within three months which is almost unheard of for a full High Court trial. It put enormous stress, certainly on the lawyers on my side and I think probably also the other side. That enabled the issue to come to a full open hearing at court and to be determined which it was. Of course the libel action remains open. It would be difficult to sue for libel about the first edition of the newspaper which was all about the Nazi allegation because that has been decided and I think the court might feel that I was overdoing it by suing for libel on that. Where I certainly can and could sue for libel is on the second edition of the newspaper where they said that when I denied there was a Nazi element I was telling a lie. I think they gave me five pages on the second Sunday saying that I was a liar. That clearly is defamatory and the question then arises as to whether to sue them for that or not. That is still under consideration because I will have to make my mind up about that definitely by the end of July.
Q120 Chairman: Given that the opportunity to take an action for libel is running out fast, you are saying at the moment you have not reached a definite decision as to whether or not to do so.
Mr Mosley: That is
correct. There are arguments both
ways. One of the problems is, first of
all, there might be a perception that I was overdoing it. People would say "You have been to court, you
have won, why are you doing this?" It
would seem almost as though I was money grabbing. The other thing is the money grabbing is more
apparent than real because if I sue for libel and win it is doubtful that the
damages plus the costs that the other side would pay, or the amount of money
the other side would pay towards my costs, would equal the bill that I would
get from my lawyers. It is a fairly open
question whether it is worthwhile.
Obviously we are looking at it.
Also they said I was a liar and it has been proved beyond any doubt that
I was not so a lot of people would say why are you bothering to sue, you have
been vindicated on that point already.
The further final point is there are proceedings on the Continent,
Q121 Chairman: You suggested that the principal reason you went for a privacy action rather than libel was the speed at which it could be heard in court. Had it been possible to have the same sort of timetable for a libel action, would you have chosen libel?
Mr Mosley: I would have done both. To me it was clear that there were two elements to this. There was the element which was true but very private and very embarrassing and then the element which was untrue which was the Nazi allegation. I would have pursued both because even if there were no Nazi allegation at all and they had simply revealed that I had been involved in a sadomasochistic party, I prefer to call it, that was, to my mind, a grossly illegal and unacceptable invasion of privacy because it was completely private. No-one outside had any knowledge or anything to do with it. That, to my understanding, was a breach of the law not just since the 1998 Act but even a breach of the earlier law on confidentiality and a large number of issues. I would have attacked under that anyway but I would have been very happy to attack under libel at the same time.
Q122 Chairman: The assumption has been on the part of the newspapers that somebody in your position would not want to go to court because it would simply lead to day after day of further details of what you have said was extremely embarrassing for you. To what extent was that a consideration or were you determined that you wanted to pursue this?
Mr Mosley: It was certainly a consideration because at the very first meeting I had with the lawyers they pointed out to me, first of all, that there would be an offer, in all probability, from the newspaper. If I did not accept that offer and insisted on going to court and subsequently recovered less than they had offered, I would pay all the costs from three weeks after the date of the offer until the thing was finished. That was the first thing that was pointed out. It was also pointed out that damages awarded in privacy actions tended to be very low indeed, single figure thousands. Single figure thousands are a lot of money but by comparison with the costs involved it is almost negligible. That was the first consideration. The second thing they pointed out was they said if you go to court and you win, everything works, first of all you are going to have the entire matter debated in public; that which has been published which you did not want published, that which was private that you did not want published, will be published all over again in more detail with them able in court to make any allegation they like about you because it is absolute privilege if their witnesses say things. You will get all that in the papers again and then after that is over if you win if you add the damages that you have recovered to the costs that you recovered from them as well those two things together will be less than the amount of money you are going to have to pay your lawyers. What you get is a whole repetition of the damaging publicity, you get the thing all over again, plus you get a large bill which you have to pay so you end up paying the damages.
Q123 Chairman: You are saying that the costs awarded were not sufficient to cover the total costs.
Mr Mosley: Indeed. In round figures my costs were slightly more
than £500,000. The costs that the News
of the World had to pay, the so-called taxed costs, were £420,000, there
were £60,000 damages, and then there were other bits and pieces of expenses
that I had to meet myself. I was left
with a bill of something of the order of £30,000 altogether. To me it was worth it but to an awful lot of
people they would say "If in addition to getting everything repeated again,
exactly that which I wish to keep private, I am going to have to pay a big
bill, I will not do it." That of course
is exactly what the newspaper's calculation is as you said at the beginning of
your question. Most people, in fact you
could almost say a rational person, would not sue. I just felt that it was so outrageous and
also, because of the Nazi element, they had put me in a position where the
entire world knew this; it was not just
Q124 Paul Farrelly: You have said in your very succinct submission that "The News of the World has shown its contempt for the law", given the decision that was made in your case, "by applying for the title of 'Newspaper of the Year' on the basis of my case." You have helpfully attached the News of the World's submission for the award. One could understand, and the public might understand, in those circumstances you going for the newspaper again to have a punitive element to your pursuit of them so one might understand why you might go for libel as well. I am not sure I am convinced by your case on costs because I would have thought there would be umpteen firms of lawyers queuing up at your door offering you a conditional fee agreement to go to the News of the World in which case it would almost surely settle before it came to court.
Mr Mosley: There is an element of that. You are absolutely right that it is quite likely that I could negotiate a conditional fee arrangement - I think that is what it is called - and it would be attractive to a law firm because their chances of success would be very high and therefore their chance of recovering, I think it is double or significantly more, costs would be high. It is attractive and that is one of the things we are thinking about. The other element to bear to mind is I have to be careful not to appear to be trying to be money grabbing or vindictive. An awful lot of people standing back from it tend to say "You have got what you wanted. You have proved that they did not tell the truth." Also punitive damages, which are the things that really upset people, do not seem to be available. You might get a jury that was really incensed by their conduct and awarding a very big sum but then those sums tend to be reduced on appeal. It seems that the maximum in libel is not that big. Of course what they would be saying in court is "Here is this man. He has got a certain amount of money himself. He is coming after this newspaper and trying to help himself to more." They could make it sound as though I was behaving badly.
Q125 Paul Farrelly: One of the areas we are interested in exploring and inquiring into, not necessarily in your particular case, is the potential of CFAs for abuse, that it becomes a racket for the lawyers and that people who are well able to fund their own cases have resorted to CFAs because it has more of a chilling effect on newspapers. You might not have such sympathy for newspapers but these are perception concerns that you are bearing in mind at the moment.
Mr Mosley: Yes. To my way of thinking, CFAs are absolutely vital as part of the English legal system in order to protect the interests of people who cannot afford themselves to bring one of these actions, and without those it is very, very difficult for somebody with ordinary means, even somebody earning quite a lot of money, to think about bringing a case. A big libel action you are talking about £1 million and an ordinary person cannot do that and even quite a wealthy person has to think very, very long and hard. If I had lost my privacy action against the News of the World I would have ended up with a total bill very close to £1 million. Ordinary people cannot do that. How do you protect ordinary people if you do not have a really draconian criminal law to deal with libel and privacy invasion? The only way that I can see are these CFAs. If they exist, and I think it is quite right they should, it is slightly an abuse of the system if somebody who can afford to bring an action themselves then uses that as a way to punish the newspaper and because the editors watch every move particularly I make in this area I am sure they would not hesitate to point that out. I would not want to do anything that might cast any doubt whatsoever about the need for those CFAs in order to protect the vast majority of people in this country who cannot afford to put £1 million on the line in order to protect their reputation.
Q126 Mr Evans: I am a little confused as to exactly what is going through your mind at the moment as to whether you are going to sue for libel or not. As Paul suggested, you could do a conditional fee arrangement which is there but you are doubtful because you do not wish a jury or the court of public opinion to think that you are acting badly so you are going to show some Christian compassion towards the News of the World.
Mr Mosley: I do not think you could ever accuse me of having Christian compassion towards the News of the World. No, it is a slightly different thing. First of all, the court of public opinion, it is interesting you have raised that point because when the BBC did a big interview on the entire issue there were 750 entries on their blog and it came out at just a shade under 80 per cent on my side and just a shade over 20 per cent on the News of the World side so the court of public opinion is very clear. The public opinion polls I have seen which are relevant are very clear. The public do not like the degree of intrusion into privacy that the current tabloids go in for. It does not mean they will not read it. Very few of us confronted with a completely outrageous story about some pop star and what they did or did not do and you are on the train and it is there but it does not mean that you think it is right that it should be there. Public opinion is fine. What I do not want is to appear to be somehow a bully in this thing. Also bear in mind that with all these actions going on on the Continent people might start to say are you not overdoing it. The obvious thing for me is to wait and see how the actions on the Continent evolve and what actually happens. There is a possibility that the editor and the chief reporter could go to prison. If that happened, or if it looked seriously like it was going to happen, that would change the perception completely. It is one of those things where I will know a lot more when it comes to make your mind up time than I know now.
Q127 Mr Evans: If they go to prison you will think they have suffered enough but when you see front pages of the News of the World with those sorts of headlines, what went through your mind when you saw that for the first time?
Mr Mosley: It is very difficult to describe something like that coming completely out of the blue. Do not forget it is not as if I had done something a bit "iffy" on the Friday and there it is in the paper on Sunday. I had been doing this for 45 years and there had never been a hint, nobody knew, and suddenly at on Sunday morning I get a phone call saying "Have you seen the News of the World?" I said "No, I have not." I never see the News of the World. I went to the local newspaper shop and bought two copies and I was horrified. The sensation is a little bit like - and it has never happened to me fortunately - coming home and finding your front door open and everything in your House removed by thieves. You would shocked, annoyed, angry, outraged. You would have a deep sense that the law had been broken but an even greater sense that you had been invaded. It is sort of like I imagine that would feel. Thank God it has never happened to me but it is the same sort of sensation. What a lot of people do not appreciate is it is a little bit like road accidents: you read the statistics but people do not actually think about the individual family and the knock on the door by the policeman coming to tell you the terrible news about the father, the brother, the son, the daughter or whatever. One does not realise when you read these things, where certain people say they should be allowed to publish because it is sells newspapers, the appealing impact on the family. It is the most terrible thing you can imagine. I sit here I hope quite rational, reasonable and so on but it is a terrible thing. It is like imposing on someone the most enormous penalty. It is like taking all your goods, taking all your money; in fact it is worse because if someone took your goods and your money you have some chance of replacing it - even if you are not insured you can work - but if somebody takes away your dignity, for want of a better word, you can never replace it. No matter how long I live, no matter what part of the world I go to, people will know about it. It is not that I am ashamed of if like I am not ashamed of my bodily functions but I do not want them on the front page of the newspaper.
Q128 Mr Evans: Are you still going through it? When you go to functions, do you hear people sniggering behind your back and making jokes?
Mr Mosley: No, people are too dignified for that. People do not do that but you know that they know. No-one would ever be rude enough to make an unpleasant joke. People who know me very well will make jokes about it and that is fine; I am a grown-up adult. You go into any place, a restaurant or anything and nobody says anything but you know they all know. You know that in any country you go to, and I go all over the world, I know they all know and that is not very nice for me. What is appalling is for my family. My wife did not do anything, my sons did not do anything, but they are the ones that feel more embarrassed than anyone. Putting myself in the position of my sons, imagine seeing pictures like that of your father; it is appalling. If there was a huge genuine public interest in subjecting a family or individuals to that sort of thing, of course one should do it but it has to be a very big public interest because the suffering you impose not just on the victim but on his family is really, really serious.
Q129 Mr Evans: That is the point I wanted to bring out to talk about pre-notification where you have suggested there is a loophole in the law. In your written submission you say if an editor wishes to publish an item which he knows or suspects is an illegal invasion of privacy it is in his interests to keep his intentions secret from his intended victim so that by the time the victim finds out it is too late to do anything. You contain that is exactly what happened in your case.
Mr Mosley: Indeed.
Q130 Mr Evans: Could you tell us about pre-notification? How do you think this requirement for pre-notification would work? How would it have worked in your case do you think?
Mr Mosley: Of course it
could be represented to be a huge inconvenience to newspapers but if one looks
at the reality you have got a mass of cases where they publish something about
somebody where there could be no possible suggestion that that person might
object and then you have a number of cases where the person might object but it
is clearly in the public interest. A
classic case of that would be the recent exposť in The Sunday Times about
peers accepting money for allegedly discussing legislation. In between there is a small band of
publications which could be said to invade privacy, where the editor knows
perfectly well that it is an invasion of privacy and it is probably illegal,
and it is on those occasions that they go to enormous lengths to keep it secret
from the victim. The way in which they
do this - and they did in my case and also in the case of the chef Gordon
Ramsay - is they publish what they call a spoof first edition. They have a story in the first edition that
bears no relation to the real story because they know the first edition is
probably available on the streets in
Q131 Mr Evans: We had the libel lawyers in last week, as you may know, and they were talking about the practice of accountants sitting down with lawyers working out that a story is completely wrong but still going ahead with it because they think it will be good for sales and good for circulation. You believe that pre-notification would be able to nip that in the bud and that it would go to a judge and they would make that decision.
Mr Mosley: I think it
would. One has to remember that under
the Human Rights Act the press through their lobbying managed to erect a big
hurdle that you have to get over in order to get an injunction. The myth is put around by Fleet Street that
if you know you just go and get an injunction.
This is absolutely fundamentally untrue.
Lord Wakeham, in more or less his last speech as chairman of the Press
Complaints Commission, was quite fulsome about the lobbying success that they
had had in getting Section 12 of the Act put in there. Section 12(3) says you have to satisfy the
judge that you are likely to win the action.
It is a much higher test to get an injunction in a privacy matter than
in the law generally. The classic
example in the law generally is you have a tree at end of your garden and I say
I have the right to cut it down and you say I have not. You will probably get the injunction because
the judge will say once he has cut the tree down you cannot put it up again so
the balance would be on your side getting an injunction rather than my side
which would be to cut the tree which is completely rational. The press managed to get that changed in the
case of privacy where the judge would not just say "Hang on a minute because if
this goes out into the open everyone will know about it", which would be the
normal test, it is a higher test which is "Am I, the judge, satisfied that this
is a case which this claimant is likely to win." It is quite difficult to get an
injunction. If you can go to a High
Court judge and satisfy him that you are likely to win the privacy action, it
cannot be right that the paper should publish it. Even more it cannot be right that you do not
get the opportunity to do that so that your rights are completely bypassed and
you are left with no remedy. It is also
a breach of the Convention on Human Rights because the Convention puts on the
Q132 Mr Sanders: There are a couple of problems with pre-notification and the first is that there is a tension between Article 8, the right to privacy, and Article 10, the freedom of expression and the fact will pre-notification actually stifle the freedom of expression of somebody that wished to publish something. How would an ordinary member of the public, who is phoned up on a Saturday to be told there is something that will be in the paper on Sunday, actually know how to contact a judge in order to get an injunction? Where would you start, ring up your local solicitor? They are not open on a Saturday. How would an ordinary member of the public do that?
Mr Mosley: That is a very good point. On the first point about stifling, the whole task of a judge confronted with finding a balance between Article 8 and Article 10 of the Convention and Section 8 of the Act, is that he weighs the balance of the public interest against the interests of the individual whose privacy is being invaded. That is what the judge does. How can it possibly be said that the judge is the wrong person to make that assessment. All it would stifle would be people like the editor of the News of the World who deliberately breached privacy, find their way around the law and find a way of doing it in breach of the law. What the News of the World did to me, and what numerous newspapers do to numerous individuals, is a complete breach of the law. They know it is a breach of the law and that is why they publish the spoof edition. When it goes to a judge, the judge actually weighs precisely the point that you have been good enough to make. It is a balance between the two: do we stop it being published because the public interest may require it to be published or do we allow it to be published despite the privacy of the individual. The idea that any time you ask a judge for an injunction you get one is a myth for reasons I have already explained. If you imagine, for the sake of argument, the unfortunate peers in The Sunday Times case. They had a clandestine recording made of what they said which prima facie is a breach of privacy. If one of them went to a judge and said "My privacy has been invaded", the judge would say "Your privacy has been invaded but let us look at the public interest. You are a peer. You are responsible for legislation" and all the obvious arguments and the judge would throw them out and quite rightly. For exactly that reason The Sunday Times did not hesitate to approach each of those peers and ask them what they thought. There was prior notification because there was no need not to notify them previously. It always comes back to the same thing as to who is the right person to take the decision: is it an independent High Court judge, who after all are probably some of the most straightforward, honest independent people in the land, or is it a tabloid editor who has a massive commercial interest in publishing them. To me there is no discussion, plus we have the law of the land and it is up to the courts to follow it. On your second point, that is a very valid point and the way to deal with that, in my submission, is to require that prior notification be given with sufficient time so that people have an opportunity to do something. As you quite rightly point out, even I would be in difficulty on a Saturday night, or not now because I have had all this and I know exactly who to ring, where to ring and I have their home numbers. Any normal person, even somebody prominent, is not necessarily going to have a lawyer with expertise in this area who knows exactly who the duty judge is in the High Court and to get hold of him and ring him. You are absolutely right that you need a period of time; you need two, three or four days' notice. For example, News of the World in my case knew what was going on but they only did the filming on the Friday. There would be no difficulty about publishing that a week later. They could have held that over to the following Sunday; it is not a problem. When you weigh the minor inconvenience for the editors against the appalling consequences for the family of the victim in my submission there is no discussion. They should give reasonable notice and enough time so that anyone can get hold of a local solicitor who will then say "I am not an expert but I can tell you in two minutes who is" and he opens a book and gets hold of them. Then if it was somebody who needed it, and most people would, there would be a conditional fee arrangement if it was a strong case.
Q133 Paul Farrelly: I should say that I used to be a journalist and I worked for Reuters, The Independent and The Observer, organisations which either would not or could not afford to pay money for a story so I do not think your sort of story would have fallen into my lap for free and therefore presented my editors with the dilemma of publishing or staying true to more highbrow principles if they had them. We would be put in a position where we would have a real dilemma supporting the lines you were advocating where it came to investigative stories which we would think would be in the public interest: investigating dodgy business deals, acts by government and so forth. We would always want to get a comment but we would not necessarily want to give very much time for that comment with the knowledge that organisations such as big business or government might seek an injunction on any grounds they could simply to stop the story, be it privacy, libel, national security or breach of confidence. From my experience I do not share your faith in the discerning nature of judges. I have been on the end of an ex parte injunction from a judge who just granted it willy-nilly. Can you explain why you think judges are as discerning as you make out?
Mr Mosley: Everybody is fallible, there is no question, but when you say they go on any grounds and then you cite privacy, libel or national security, first of all it is as near as impossible as can be said to get an injunction on libel. If somebody pleads justification, there are a number of leading cases that say you do not get an injunction; nevertheless somebody could ask for an injunction. The thing is that it all comes down to who decides. We do employ judges and they are carefully selected. They are supposed to be the best there are and they are independent manifestly. They may not be perfect but they are, in my submission, an awful lot better than the tabloid editor in deciding this matter particularly as he has an interest. When we come to serious investigative journalism and when you talk of Reuters, The Independent and The Observer, those are newspapers and an organisation which one associates with that. It is, I would suggest, inconceivable that a judge, where there is serious investigative journalism unless there are other factors which one cannot speculate on, would give an injunction because that is exactly the basis of a free press, that you can have investigative journalism and it is in the public interest. I keep mentioning it because it is the most recent but the peers in The Sunday Times is a classic example of there being no question of an injunction. It is the areas where neither The Observer nor The Independent nor Reuters would venture that the red tops and the tabloids go. That is where you get the terrible abuse of the rights of an editor and the whole thing of free speech and freedom of the press. They actually abuse freedom of the press which is a very valuable thing and they damage the whole of the press by their abuse. I would be the last person to say there should not be serious investigative journalism. If I were doing something wrong in the FIA, or doing something wrong to do with Formula One, they would have absolutely every right to publish it; that is what papers are for. One should not confuse that with wishing to publish things about someone's sex life that is of no interest to anyone except the individual and his wife.
Q134 Paul Farrelly: There are cases where judges have issued an injunction. My concern is that while some people may be very sympathetic to your case and other invasions of privacy and the culture amongst tabloid newspapers, the ramifications of changing the law may be using a sledge hammer to crack a very big nut in terms of the potential effect it may have on other legitimate forms of journalism. Just in terms of the workability of what you are proposing, you say in your evidence that a reasonable period should be given for pre-notification before publishing a story. I have said I might want to approach people for comment but not give them much time. Can you explain what you mean by a reasonable period?
Mr Mosley: This is my opinion and it would be a matter for considerable thought. I would say that if it was for the Sunday you would need to be told on the Thursday. You need one clear working day. If you are going to do something, anybody should be able to do it in one clear working day. 72 hours would probably be the right figure. You would need to be, for the Sunday, asked on the Thursday. If it was for publication during the week, then one clear day between: published on the Wednesday, tell you on the Monday. I understand what you say that you would like to ask at shorter notice but what you are really saying is "I want to ask in sufficiently short notice so this person cannot go to a judge." What you are then saying is "The reason I do not want them to go to a judge is I do not trust the judges." That follows absolutely logically from what you said and we cannot have that. If we do not trust the judges, what do we do? We cannot have a society in which we say "I do not want a judge to look at that because he might decide against me."
Q135 Paul Farrelly: Let me give you an example of where I might have difficulty with one day. One of my concerns about what you are proposing does not simply relate to going for injunctions. Newspapers and news organisations are not homogeneous, some are nests of vipers and sometimes you cannot trust your colleagues not to leak your stories if they know about them. I will give you one example. I used to work for Reuters and one day I had nothing better to do than leaf through Robert Maxwell's prospectus from the back and I found that he had not actually complied with Stock Exchange listing rules on how he valued his assets. At the time Robert Maxwell was a board member of Reuters. We carefully checked the story with my news editor who was very sympathetic and we ran the story that he had broken the Stock Exchange listing rules. We ran it giving the broker, then Michael Richardson of Smith New Court and latterly of Rothschild who was working for Maxwell, a very short time to comment because we knew that had we been given one day Maxwell would have killed the story. In fact, he was on the phone shouting down the phone and people were approaching us there saying "Is this really worth it?" In retrospect, given what happened with Maxwell, it was worth it. There is a particular circumstance where one day might not be satisfactory because I might have run that story just before the deadline for people to subscribe to Maxwell shares. Reuters is a real-time news organisation and he may have wanted to influence that and one day may have been too late to do that.
Mr Mosley: I completely follow what you are saying but it actually goes away from the point. First of all, if you had gone to a judge and said "I want to publish the story" exactly as you have described it, the judge would have said "Why not, obviously you are entitled to publish it." The person you were fearful of was not the judge but Mr Maxwell and that is a different thing altogether. He happened to be a board member. He should not have been a board member but he was so he could kill the story. Those particular circumstances that you were in obviously posed a difficulty but that is absolutely not an argument for not going to a judge. A judge would not have killed the story Maxwell would because he does not want people to know. I do not really see the problem. When you say "But if this had been one day before", you can think of circumstances but in the end you are not, with great respect, putting forward any point which invalidates the suggestion that if it is right to publish that the judge will allow you to publish and if it is not right to publish he will stop it. In that case he clearly would have allowed it.
Q136 Paul Farrelly: I agree with you that changing the Code is probably not going to work because the Code is going to be hedged around with all sorts of hedges on the public interest, and it is at the discretion of editors and editors will break the Code just to sell newspapers as you have described, but actually instilling this in law would be practically unworkable and would have far more ramifications on good journalism than what you are trying to address.
Mr Mosley: I wonder why. The journalist has to inform the victim he is to publish the story. The victim now has a choice: he can go to court or he can just leave it alone. What damage does that do? I should not be asking the questions but how does that stop the journalist doing his job? Other than a minor inconvenience, why is that a problem?
Q137 Chairman: Can I come back to one thing you said? You suggested that you got a phone call out of the blue at on a Sunday morning saying have you seen the News of the World and you were horror struck when you discovered what it concerned. You also said that you had been attending parties with a client for 45 years. You are a public figure and you know the British press. You know the appetite of the British press for stories of this kind. Had you not always felt this was a time bomb that sooner or later was going to go off?
Mr Mosley: I have to
confess I did not. For the first 25
years I was really not well known. I
have only become a little bit known. I was well known in motor racing circles
out of that I was not really known. The
fundamental thing about that world is it is incredibly secretive because of the
embarrassment factor. It is a little bit
like gays were 50 years ago because of course in their case it was actually
illegal. You had to be really, really
careful so there is this secretive world.
In the, if I may call it, S&M world it is not even talked about
outside the circle so you would never tell someone who was not part of that
world anything about it. Nobody
knew. My closest friends did not
know. My wife did not know. The fact that it had worked so well and that
among the sort of people that I was concerned with it had never leaked out,
made me feel very confident. Obviously
there was a small chance. I must say
that Mr Justice Eady in his judgment said that perhaps I had been slightly
reckless I think was his word. My
response to that is I know that when I go for a walk in
Q138 Chairman: You say it was very unlikely but you also say you have been a public figure for 20 years and you have been going regularly. However low the probability, if you keep on taking the risk sooner or later it is likely to come up.
Mr Mosley: Yes, but if
one followed that to its logical conclusion you would never fly, you would
never get in a car. There are all sorts
of things you would never do. You would
not go out at night in
Q139 Chairman: Nevertheless, it was one of those who did go to the News of the World.
Mr Mosley: It was. I think the problem is that the one who revealed it was the great friend and fellow babysitter, et cetera, et cetera, of the main woman, Woman A. Woman A trusted her and because I knew Woman A was absolutely trustworthy I perhaps foolishly assumed that it was all right to trust Woman E and I think it would have been but the problem was her husband, the MI5 man, put her up to doing it. He made all the arrangements with the News of the World. I think he put her under pressure. What was unfortunate is that she told him and of course most of the people in that world would not have told their partner. These things happen.
Q140 Alan Keen: You mentioned earlier that in fact most people do not have access to funds so if they knew about it they would go to the Press Complaints Commission. You chose not to. Is that because you had the funds or that you have looked at it carefully and you do not think they have enough power?
Mr Mosley: In my case against the News of the World I must say a conditional fee arrangement did not enter my mind at that stage. If I were looking now to go after them for libel the conditional fee arrangement would have great attraction if the lawyers that I would wish to employ would agree to it, which they probably would, but when I first went it was not in my mind. This was early days. When I first talked to the lawyers this was after the first publication and before the second publication where they said I was a liar. We were then trying to get an injunction. I was really anxious to get the thing on and get the Nazi business killed. I have to confess the last thing on my mind were fees at that stage as that was quite a minor consideration.
Q141 Alan Keen: You did not need to use the Press Complaints Commission but through all of the problems you have faced have you looked at the powers, or the lack of powers, that the Press Complaints Commission has? For people without recourse to funds they are the only people they can go to for help. Have you put any thought into their powers or lack of powers?
Mr Mosley: Very much so. Right at the beginning my first reaction was we should complain to the Press Complaints Commission. Then I quickly learned you cannot do that if you are also litigating which seems to me to be a mistake. As long as what happens in the Press Complaints Commission does not prejudice a legal action I see no harm in it at all. In fact, even from a newspaper's point of view, it could be beneficial because if the Press Complaints Commission were to have slightly more extensive powers then you can well imagine that it would actually mitigate the difficulty the legal case might have. Yes, I thought about it but the problem with the Press Complaints Commission is, first of all, they have no power. They have no actual power of compulsion as I understand it. Secondly, it is very much a creature of the press. In one or two instances, I think outrageously so, if I could illustrate, if you take the Code Committee which draws up the Code of Conduct and you look at the Code itself there is not a word in the Code about corrupting public officials. There is no requirement on the journalist not to bribe a public official to give him information that that public official should not give him. There was a case recently, about five years ago, where the police raided a private investigator whose business was to obtain information from sources like the police, the DVLA, and various other government or semi-government organisations all in breach of the Data Protection Act. The paper with the most applications to this private detective was the Daily Mail with I think 950 cases by 63 different journalists over a three-year period. It was obviously part of the Daily Mail culture to use this man who was obtaining information improperly from these different agencies. Who is the editor of the Daily Mail? Mr Dacre. Who is the chairman of the Code Committee? Mr Dacre. It would be funny if it was not such a serious matter.
Q142 Chairman: I would point out the Committee did an inquiry into the operation of the Motorman incident, which is the one you are referring to, and we had Daily Mail and other newspapers before us. They pointed out and the Code Committee pointed out that they actually issued new instructions after the Motorman case making it absolutely clear that this should never be done by journalists.
Mr Mosley: That is very good news but it is surprising this has not found its way into the Code. One would have thought the chairman, being so aware of it having appeared in front of this Committee, the first thing he would have done when he left this Committee would be to sit down with his committee and incorporate into the Code a requirement not to do that. There is an aspect of this I would like to point out to the Committee and that is it is not just the Data Protection Act. It is inconceivable that if information is obtained from DVLA or even, I am sorry to say, the police or various other bodies that no money changes hands. If money or valuable consideration does change hands then, depending on which body it is, either under the Public Bodies Corrupt Practices Act of 1889 or the Prevention of Corruption Act of 1906 it is a criminal offence. It was remarkable in the Motorman inquiry that not one journalist appeared in the dock when the private investigator did. I do not want to exaggerate and I certainly do not wish to be offensive to the media, not even the tabloids, but it is actually absurd to have a body which is run by the journalists themselves never mind a Code Committee. I am sorry to say this but it is like putting the mafia in charge of the local police station; it simply will not work. If you are going to have any sort of proper rules you cannot let the people regulate themselves. You cannot let the banks regulate themselves. I cannot let the Formula One teams regulate themselves. There has to be somebody independent looking at it. Witness the fact that, I think I am right in saying, nearly four years have gone by since the conviction of those people in that case and not one word in the Code. There are a lot of the other things in the Code, all sorts of things, but nothing about corruption.
Q143 Alan Keen: I thought your attitude earlier was admirable when you said you did not want to be regarded as a bully and now you just said you do not want to offend even the tabloids. Do you not think they are the ones who have been the bullies in so many cases and the only way to treat a bully is to fight back very fiercely? Why are you reluctant to do that?
Mr Mosley: I am fighting
back vigorously but I am very conscious of the need not to overdo it. In the end what happens is going to be a
reflection of public opinion. It is an
awful thing to say but if you are perceived to be wealthy and to be in a
position of power and influence you must not be seen to be overdoing it. I am already doing a lot. Going after them under the Penal Code in
Q144 Alan Keen: There is such a thing, probably talking more about safety of the public and workers, of corporate manslaughter. People who own newspapers, take the chief executive of the holding company, might be arm's length from the newspaper company but it is part of a conglomerate. If death was caused by the company because of lack of safety procedures and even cutting costs, irrespective of the dangers to workers or the public, that responsibility can go right back to the owners. Have you thought about that in relation to newspapers? There are some people who are sitting back a long way away and letting other people act in a most despicable way. This is what you are saying today. Do you think the public should be able to get back to those people who are counting the money but pretending it is nothing to do with them?
Mr Mosley: I completely
agree. It is a little bit like the
really successful criminals. They never
get caught because they use other people to carry out the crimes. I have asked lawyers in
Q145 Rosemary McKenna: Can we move on to the responsible journalism defence? First of all, can I say thank you very much for bringing to our attention the News of the World's application to be Newspaper of the Year. It is really quite interesting that here we have a newspaper obsessed by an individual's sexual behaviour using two cases based entirely on an individual's sexual behaviour, whether or not true or not, on the basis they were a good story and that there was a high principle at stake. I find it difficult to find a high principle in those two cases. Do you think that there is ever a case for reporting an individual's sexual activities?
Mr Mosley: I have to say I would not say there should be a blanket power. That is to say I would like to say anything that is sexual is completely private but if it were down to me I would allow one small exception where it can be shown clearly that what the person did is directly relevant in a damaging way to their public activity. If you can show direct relevance then it is permissible but anything other than it is deeply private. It is just as private as when one is in the bathroom in the morning. The News of the World would happily film a pop star carrying out their ablutions and say this is interesting. It should not be allowed. May I say one other thing appropriate to that point of deep interest? One of the arguments that is put forward for exposing particularly footballers and people of that kind is that they are role models. Of course in reality it is a completely reversed argument. Take for example the swimmer, the one who won seven Golds at the Olympics and got caught smoking cannabis. He is exposed because he is a role model. Surely it is exactly what you do not want to expose. Imagine you have a 16 year-old son, he is a very good swimmer but he has some difficult friends and he wants to have the odd spliff, I think it is called. You say to him "You must not do that. If you want to be a successful athlete you must not do that. You have to keep on the straight and narrow." It is the same with a racing driver or anybody. He points at the swimmer and says "He smokes cannabis and he has won seven Gold medals so what is the problem?" A sensible society would not publicise the fact that a role model has done something he should not do precisely because he is a role model. It gives the wrong message to the young people.
Q146 Rosemary McKenna: I was thinking about the sexual activities' argument about not publishing. There was a case in
Mr Mosley: That is a very interesting question. The fact that everybody sins I think is beyond doubt. Is it worse if the person who sins is a priest? If it were, or if priests, using the general term whatever religion they happen to belong to, or if a clergyman is really not allowed to sin then we would have no clergymen because everybody sins unfortunately. They have this set of principles they are supposed to live by and people move away from them. Some religions have confessions, some do not. Whether it is helpful, whether it is relevant, imagine he is a really, really good bishop doing a really, really good job and this is completely on the one side and has nothing do with the way he conducts his actual job or the way he puts the thing forward and you lose that really good bishop because of this sin and you get a less competent bishop in his place. I am not sure it is in society's interest. The mere fact that people do not do what they say one should do, in other words do not do as I do but do as I say mentality, is not necessarily an argument for not keeping it secret. Exactly the point you have raised is exactly the sort of thing that a judge would weigh. If we come back to the point of prior notification, the judge sits there and he weighs this quite difficult moral question that you have raised. I put one side of the case but I could put the other side reasonably effectively as well that it should be published, but that is what the judge does and that is why we need prior notification.
Q147 Rosemary McKenna: You are basically saying that the defence of responsible journalism is no longer relevant and at the moment they are publishing anything without actually thinking through whether it is responsible journalism.
Mr Mosley: I think that is very true. I think an obvious example of responsible journalism would be The Sunday Times about the peers or Mr Farrelly's point about Robert Maxwell. Those things are undoubtedly responsible journalism. The defence exists without any question but it all comes back to the same thing. If this goes to the judge he will weigh it and he will weigh it very well and very fairly. One gets in a very difficult area with all sorts of hypothetical cases. If one thinks about it long enough you can find cases where it is really difficult to say is it in the public interest or should it be private but that is what we have judges for. Getting back to my fundamental point that there should be prior notice, it is precisely for that reason, in my submission, that we need it to go to a judge.
Q148 Rosemary McKenna: One of the things that I am trying to find out in this inquiry is how can we help ordinary people who find themselves in these circumstances, do not want the story repeated, do not know how to deal with it and do not know how to get in touch with the Press Complaints Commission, local lawyers or anybody? How do you think your case will help ordinary people caught in these situations?
Mr Mosley: If you take a completely ordinary person and they are going to have something devastating revealed about their sex life, the newspaper effectively notifies them by asking the question, putting it to them or just telling them they are going to do it. If that person has a clear working day, even if they have never been to a solicitor in their life, they go into a local solicitor's office and say "I have this problem in the morning." The local solicitor will quickly open a book with all the specialists in and he will say "I will make a phone call for you and ring one of the specialist lawyers" like for example the people who represented me, and by that afternoon you could have a conditional fee arrangement in place and they would then act to go and get the injunction. Most of these specialist lawyers will take it upon themselves to do that even if they had to do it pro bono. A very well known privacy lawyer that I know has acted on a pro bono basis, a privacy barrister. Once you give notice if the person really minds they can do something about it. If there is somebody who has never had anything to do with the law, where this is a complete mystery to them, they will always have a friend and they will say "I have this problem, what shall I do?" The friend will say "You need to see a solicitor. I know a solicitor." Given a clear day I think most people can do it but it would have to be a clear working day hence the minimum Thursday for Sunday. Then I think ordinary people can do it because thanks to the conditional fee arrangement it is possible for an ordinary person to take the action but without that we would have a society where, like the judge once said, the law is open to everyone just like the Ritz Hotel and that is obviously wrong.
Q149 Paul Farrelly: Just following on from Rosemary's question of responsible journalism, some people would say it might help the public interest if the responsible journalism defence was actually helped by statute so it might make it more workable. How do you feel about that?
Mr Mosley: I think there is much to be said for that. This would force some very clever people in parliament, but also among the draughtsmen, to think carefully what was meant by responsible journalism. A statutory defence of that kind would safeguard genuine responsible journalism and I would trust the judges to know the difference between that and salacious reporting that is not responsible.
Q150 Janet Anderson: You referred earlier on to something you described as the Daily Mail culture. You will know that Paul Dacre, the editor of the Daily Mail, was particularly critical after your case. He described the ruling as a privacy law by the back door. You have made your views about prior notification well known. Do you think there should also be a privacy law? Would you support the introduction of a privacy law?
Mr Mosley: I would. I think privacy, as indeed is clear from the
European Convention on Human Rights, is a fundamental right. I think if you have a fundamental right it
should be protected. The suggestion is
always put that this is somehow a European thing but of course it is not. The European Convention on Human Rights was
drafted by British lawyers, headed by Maxwell Fife, who was later Lord
Chancellor. It incorporates basic
British principles about what should be the rights of an individual. Nowadays it is so much more serious than it
was. Once upon a time a breach of
privacy was perhaps in the
Q151 Janet Anderson: If we had a privacy law do you think that would impede the investigation and reporting of matters that were in the public interest?
Mr Mosley: I do not because again I would trust the judges to know the difference between what was private and not in the public interest and what was perhaps private but the public interest required its disclosure. If you have a privacy law, I would suggest that it would obviously have a clause saying that where the matter was in the public interest then the privacy law would not apply. The onus should be on the person wishing to publish to demonstrate that the public interest required publication.
Q152 Janet Anderson: You mentioned
Mr Mosley: I think there
is a strong case for it but if I were allowed to say what would happen I would
not want the journalist to be imprisoned but the organisation to be subject to
an enormous fine and that is what would stop it. In the end Mr Murdoch would look at his
pocket and he would make sure it did not happen. The journalists when they are on the scent
will always overdo it and they need somebody holding them back and the best way
of doing that would be a fine. In the
case that I brought, we asked for, but were not optimistic about getting and
did not get, exemplary damages. The
problem with exemplary damages is you get a large sum of money awarded to an
individual. It is like a windfall and
there is something wrong about that. If
there is going to be enough money to make any difference at all to News Group
Newspapers and News Corp it has to go into the public purse and then nobody
feels bad about that at all. I would not
mind seeing them fined, rather like in competition law cases in
Q153 Janet Anderson: Fines would be your preferred option but do you not think that the
fact that in countries like
Mr Mosley: I do not
think it affects journalism in the broader sense very much but if you take my
case, Article 2261 of the French Penal Code makes it an offence to take
pictures of somebody in a private place without their consent. Article 2262 of the French Penal Code makes
it an offence to publish those pictures or draw them to the attention of a
third party. Both offences carry up to
one year imprisonment and a fine of 45,000 EUR.
The first one, taking pictures in a private place, did not apply in my
case but of course the second one did because the News of the World is
published all over France. It is another
illustration of their complete contempt for the law that they just do not
care. They must know that this is
Q154 Mr Evans: When you said earlier on you thought that in your opinion your father had overdone it a bit I think you just might have taken understatement to a new level. How significant do you think it is that you are the son of a wartime fascist leader has been playing in this particular handling of the story?
Mr Mosley: It certainly played a role because it upped the level of interest in the story. Of course, once the News of the World started the Nazi thing they were able to link "Your parents were married in Goebbels' house", and all the sort of thing.
Q155 Paul Farrelly: These factually correct things.
Mr Mosley: Absolutely but I was not there. It is not really my fault. The thing is that yes, it played a role, no question and, in a way, that is an illustration of how deeply unfair they are. I have noticed this in the dealings I have had with politicians in this country. No-one, and I have met an awful lot of them in different circumstances, has said anything to the effect that it bothers them who my father was. It is not a problem.
Q156 Mr Evans: Mosley disowns father. I am giving another headline to the story.
Mr Mosley: To be fair,
when I was young I certainly stuck up for him.
When I went to university I decided to study physics because I thought
physics has an advantage over anything to do with politics or philosophy
because in the end you can say "There is the box. If you do not believe it, sit on the box I
will go somewhere else and press the button and we will settle the argument"
whereas politics you could argue forever.
I was quiet happily doing physics and towards the end of my second year
somebody said "Of course you could never ever go anywhere near the
Q157 Mr Evans: That brings me on to the damages thing. Clearly you were going for exemplary damages which you did not get. You have just explained to us all that you are now £30,000 out of pocket by this particular procedure which then begs the question. Clearly you would like exemplary damages given in these cases but the fact is, after all you have gone through, I do not think anybody would accuse you of going over the top if you were to go for libel. Do you not want this all dredged up again, is this part of the reason? You have come here today of your own volition which means this again will play in the newspapers tomorrow and later on tonight. The big question mark for the public is why does he not go for it then?
Mr Mosley: First of all, there is time; secondly, coming here today is a very different thing. It is rather like going to the European Court of Human Rights. I am hoping to persuade those who have the power to do so to change the law. That is a very different thing. I feel that is a duty, something that really needs to be done and hence my request and my gratitude for being allowed to come here. As far as going after them for libel is concerned, I have explained that already but another small factor which I should mention is my term of office in the FIA comes to an end in October and I have to take a decision whether to stand again or not. If I stand again and I am elected I want the minimum of distraction. If I decide, and I have to decide by the summer, not to stand again I will have much more time to do something like pursue the News of the World for libel. They may just settle but it could be a massive case involving all the things again which, I have to confess, if I had the time I would relish. I think the more they are looked at, the more they are brought into court, put under the microscope, cross-examined, the more disreputable and evil they become. It would be irresponsible to take a second term at the FIA as these things take an awful lot of time. I am desperate to get on with situations to do with Formula One because of the current economic crisis. They need my undivided attention which I am not giving so there is that factor as well.
Q158 Mr Evans: We were told last week that if you did a conditional fee arrangement and they took you on the chances are you would win, the chances are they would settle out of court so the chances are it would not distract you and you could do both.
Mr Mosley: Absolutely,
100 per cent, but you have to say what is the worst case before you start on
anything like this. If you are going to
go after the News of the World for libel you must be prepared for
Mr Murdoch sitting in
Q159 Paul Farrelly: Internationally it is correct to say you are suing for libel in
Mr Mosley: Correct.
Q160 Paul Farrelly: Why?
Mr Mosley: Because they libelled me.
Q161 Paul Farrelly: Why not in the
Mr Mosley: I just
explained. I have not yet taken the
decision whether to do it in the
Q162 Paul Farrelly: Your actions that are still ongoing and under consideration, be they
Mr Mosley: The suit in
Q163 Paul Farrelly: The offence occurred in the
Mr Mosley: No, their
offence was in
Q164 Paul Farrelly: To clarify, you would like both a privacy law and mandatory pre-notification on all stories?
Mr Mosley: Absolutely, because without prior notification a privacy law is nugatory for the reasons I have already explained.
Q165 Paul Farrelly: You do not think that might have not only a chilling effect but real repercussions for the sorts of journalism that are practised in the public interest and not the sort of journalism that you have been suing the News of the World for?
Mr Mosley: No, because we get back always to the same point. You have to trust the judges. If we had a law that says you must not publish something that is private unless it is in the public interest, which is pretty much what the law says now, then who decides whether it should or should not be published? In a difficult case it has to be the judge. Most cases are straight forward.
Q166 Paul Farrelly: Would you not admit that judges sometimes are known to follow their own prejudices and sometimes judges get it spectacularly wrong? Not in this issue but I remember Lord Denning on the Birmingham six saying, the biggest non-sequitur in recent UK legal history, that what he was being told about the treatment of the Birmingham Six could not possibly have been as the consequences would have been unimaginable.
Mr Mosley: For anyone to advance the proposition that judges are infallible would be foolish but equally for somebody to advance the proposition that we cannot trust the judges so we will leave the whole thing to the tabloid editors is perhaps more foolish.
Q167 Chairman: We have no more questions so can I thank you very much.
Mr Mosley: Thank you for giving me the opportunity.