Press standards, privacy and libel - Culture, Media and Sport Committee Contents


Examination of Witness (Question Number 140-159)

MR MAX MOSLEY

10 MARCH 2009

  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 PCC. 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 the 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 France, with the possibility of people going to prison, and in Italy is a lot. I do bitterly resent what they do. They have done a particularly bad thing to me. Again, I am not looking for sympathy but I was born into a rather unusual family and I moved completely away from the sort of things that that family were involved in and worked quite hard for a number of years to try and build up a reputation. I have done a certain amount and I have achieved a certain amount, not in motor sport which is the bit people notice so much as in road safety, the environment and things of that kind. You work away at something like the FIA as I have done. For the sport I have been in charge for 18 years and the whole FIA for 16 years. You do this because you want to re-establish yourself and your family as proper people and then something like this happens and it destroys the whole thing. People will not take away what I have done but I will never be seen in quite the same light and I feel it was unnecessary and unfair. Still, in response to your question, I think it is better to under-do it than overdo it. I could say the example of my father. I think he overdid it and that stopped people thinking seriously about his ideas so I always have that slight inhibition.

  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 France to investigate whether in these circumstances we could go against certain members of the Murdoch family because of what happened in the News of the World in France. That is still being looked at. It is a possibility but I do not think it is a very strong one because of the legal barriers which they erect. There is something very disagreeable about these people who are purveyors of soft porn because that is what the News of the World is. If you look at the advertisements in the News of the World, it is a soft porn paper. They do that and at the same time they hold themselves up as being so respectable and looking after the public interest. They try to pretend that in those papers they publish serious articles about serious things. The truth of it is I do not suppose anybody reads those articles. It would be very interesting, as you raise quite rightly the point, to know how many people whose privacy has been destroyed by the News of the World and one or two other tabloids have subsequently committed suicide. I think it has happened. I believe there are cases and an investigation would undoubtedly reveal there are. It is the most terrible thing what they do. Somebody who is already rather vulnerable might easily do so. The whole trade is disgusting. When you think in America they have no privacy laws relatively speaking, it is much more open in that sense than here or Europe, but because the newspapers do have proper standards of ethics, they religiously check sources and check everything, and the issue has never become a major issue. The problem here is that we have got these people who are, I am sorry to say, semi-criminals if not actual criminals. The actions of the people who got the information from Motorman are criminal. Then we had the chief reporter on the News of the World who tried to get two of the women involved to give him stories saying that it was a Nazi thing and threatening to publish their pictures unpixilated if he did not get what he wanted and offering them money. When this was put to the editor, Mr Myler, in the witness box my QC said "What do you call that, Mr Myler?" and he had to admit it was blackmail. When we subsequently went to very senior counsel at the criminal bar and said what would be the prospects of prosecuting successfully Mr Thurlbeck, the chief reporter, the answer came "excellent". The only thing that stopped the entire matter being handed over to the police was the fact that the ladies concerned really could not face another whole court case and so on. That was clear blatant blackmail, a criminal action. The thing that shocked the judge most, because the judge sat and listened, at a certain point in the hearing he asked Mr Myler what disciplinary procedures, if any, had been taken against Mr Thurlbeck and Myler said none, that he was on a holiday at the time so was not involved. In the meantime nothing has happened. Going back, if I may for one second, to the Press Complaints Commission, one of the suggestions that is put forward by the supporters of the Commission is that if someone is in breach of the provisions or did something really bad they would be sacked. Mr Myler is still there. Mr Thurlbeck is still there. Not only are they still there, having breached point 3 and point 10 of their own Code and been accused and had to admit to blackmail in the witness box, they produce a document saying that as a result of these actions they should be Newspaper of the Year. It is extraordinary and yet they feel they should not be restricted and that nobody should do anything about it. It cannot be right in a democracy. What they rely on, forgive me for going on, is that a combination of Dacre and the Murdoch press can do enormous damage to any political body which should interfere with their interests. That is what allowed them to go to Downing Street and lobby against any prison sentences for breach of the Data Protection Act, which they did successfully and which Dacre boasted about in his speech to the Editors' Association. They have this terrible power. In a democracy the idea that the legislature is in thrall to or even nervous of this sort of press and people who will behave in that way is terrifying because it is the abandonment of real democracy. It is a tyranny of semi-criminal people and, in my submission, should not be allowed.

  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 Scotland a couple of the years ago where a Roman Catholic Bishop had a child by a woman in a neighbouring parish. Surely there is a justification for publishing that given that he is giving advice to people or saying that he lives by a certain moral standard and asking them to live by that moral standard when clearly he is not.

  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 UK; it is now universal, it is the entire world and it is instantaneous. Once it is on the net instead of wrapping yesterday's fish and chips, as they always say, it is there for ever. You can Google my name and you will immediately get all the details of what happened. When technology has evolved to that point the individual needs protection and hence I would say we need a privacy law.

  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 Europe and in other European countries there is a rather different situation. The Select Committee was in Barcelona recently and we met the editor of La Vanguardia. When we put the question to him if you had information about a senior politician who had claimed to be happily married and was engaged in an affair and you had a similar story about a famous footballer would you publish. He said "In the case of the footballer we would because it might be affecting his play but in the case of the politician we would not because we have absolutely no interest in the private lives of politicians." If you think back to France there was the case with Mitterrand. You did say earlier that in France in particular criminal proceedings in theory could result in the imprisonment of editors and journalists. Would you be concerned if that were the case here?

  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 Brussels, up to 10% of their turnover. That would get their attention and then I think it would stop. I do not think anybody wants to see people in prison who are not pretty serious violent criminals but a huge, huge fine to the benefit of the public purse would have the desired effect. Yes, I would like to see a privacy law and I would like to see the possibility of an unlimited fine being imposed for breaches. That would also have the great advantage that an ordinary person, if they did breach his or her privacy, could go down to the police station and lodge a complaint and it would change the culture and we could get a much more responsible culture about damaging people's private lines.

  Q153  Janet Anderson: Fines would be your preferred option but do you not think that the fact that in countries like France the imprisonment of editors and journalists is a possibility makes journalists more responsible in those countries?

  Mr Mosley: I do not think it affects journalism in the broader sense very much but if you take my case, Article 226-1 of the French Penal Code makes it an offence to take pictures of somebody in a private place without their consent. Article 226-2 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 illegal in France. They have top class French lawyers, we know that because they have some people looking after their interests there, but they just published it. Worse than that, when they were in full cry and full sanctimonious mode their solicitors, Farrer's, wrote a long letter addressed to the president of one of my committees enclosing two copies of the newspaper and offering to send a video of the entire party to the entire membership of the FIA. They thought that this was some sort of duty of theirs, the solicitors not the paper. Of course it is now the solicitors who have published that in France and again it is being looked at as to whether certain senior partners in that firm should not also have to answer to the French courts. If you want to publish something or operate in a foreign country you have to respect the laws of that country. Such is their attitude that they think "Nobody will attack us. We are above the law." I very much hope, and it remains to be seen, that the French judiciary will take the view that if you want to operate in French you must respect their laws.

  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 quite happily doing physics and towards the end of my second year somebody said "Of course you could never ever go anywhere near the Union" which was much more serious in those days than it is now. I said "Why not?" and they said "Because they would just take you to pieces because of your father." When somebody says that, the next day you turn up at the Union; you just had to. I used to support him until I was about 21 or 22 and then started doing other things: joined the TA, started motor racing, went to the Bar and so on. You always have sympathy for your parents. I can see his side of the thing. I can see why he did what he did—it does not mean I agree with him now—but I do. He used to say to me in old age "When they say I was too impatient, there were children running around with no shoes on in 1930 and something could have been done." He knew John Maynard Keynes, he knew all that, and he wanted to do something. You cannot turn around to somebody and say "No, I do not because you got married and Hitler was the best man." It is history. I have led a completely separate life. I went into the motor racing community knowing no-one, completely on my own, and I have got a position there now. That really put a stop to it and that was finished the previous history of the family but this has revived the whole thing. You look on the web and you will find now my name linked with Nazi all because of the News of the World. It is actually objectionable.

  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%, 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 New York with his billions saying "I do not like this guy and I am going to fight him." You have to be ready for that. When I started the privacy action a big newspaper owner in another country who knows Murdoch well said "Does Max know what he is taking on?" I knew perfectly well what I was taking on but I must not underestimate them. They might well decide to fight it all the way, conditional fee or no conditional fee. He can afford to do it. I can take this on if I have the time. Let us wait and see.

  Q159  Paul Farrelly: Internationally it is correct to say you are suing for libel in France.

  Mr Mosley: Correct.



 
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