Max and liberty

People will no doubt be expecting some comment from me on the verdict in the Max Mosley privacy case. On the substantive issue, that of the right to privacy versus the freedom of the press, reams of analysis have already been produced and much more, surely, is to follow. I have no real expertise in this area, and few original thoughts to share. A few points that struck me on reading the judgement, and the reaction to it:

1) The decision by Mr Justice Eady changes little, though it undoubtedly adds to the sense that privacy is a steadily, if not exponentially, growing area of law. There was little to justify the somewhat hysterical claim by News of the World editor Colin Myler that "our media are being strangled by stealth" by "laws emanating from Europe." One of the points made by Eady J, indeed, was that while he based his judgement on human rights law, Max Mosley might well have had a case under the common law of breach of confidence: after all, he had a reasonable expectation that the women would not publicly reveal his identity, and the concept of confidentiality is an inextricable part of the S&M world in which all the participants moved.

While the result may well have an impact on trivial "kiss and tell" exposés, Eady was anxious to stress the difference between such cases and investigative reporting in the public interest, which must be protected against the encroachment of the privacy law. As such, he denied that it was a "landmark" judgement. He also made this interesting comment,

It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognised criteria.

2) The sleazebags of the News of the World do not come out of it at all well. On the steps of the High Court, Myler tried to claim the moral high ground, claiming that his publication "believes passionately that its readers deserve to be informed of when the trust is placed in their elected leaders and public officials has been violated." But, as Eady pointed out, with the dry wit for which the English judiciary has long been rightly famous,

titillation for its own sake could never be justified. Yet it is reasonable to suppose that it was this which led so many thousands of people to accept the News of the World’s invitation on 30 March to “See the shocking video at notw.co.uk”. It would be quite unrealistic to think that these visits were prompted by a desire to participate in a “debate of general interest” .

Indeed. Eady also exposes, at great length, the grubby, underhand tactics used by the journalists on the News of the World, in particular its chief "investigative reporter" Neville Thurlbeck. Even if legalese isn't your thing, it's well worth ploughing through the judgement for the crystal-clear descriptions of the deceit, manipulation, bullying and borderline blackmail Thurlbeck engaged in to get his story, sex it up and avoid paying the agreed price. Thurlbeck "seemed rather puzzled that his conduct was thought worthy of criticism in this respect", noted the judge; this following an exchange during which it was revealed that Thurlbeck had contacted two of the women and threatened them with public exposure unless they co-operated with the paper.

Roy Greenslade writes on his blog that he had to admit "feeling a little sorry" for the NotW journalists. "I know that reporter Neville Thurlbeck is not a bad man," he adds, though he admits that he and the paper's editor are "cogs in a scandalous machine that is based on gross hypocrisy". Greenslade's affection for Thurlbeck is not shared by many of his victims, however. This week's Private Eye describes how he stitched up one-time murder suspect Colin Stagg (who, of course, was later proved to be entirely innocent), offering him £20,000 for his story, doping him with a "truth drug" and then refusing to pay when Stagg failed to confess to a brutal slaying. There's also an eye-watering account of Thurlbeck's attempted exposure of naturist guest-house proprietors Bob and Sue Firth, in the course of him he paid the couple £75 to have sex in his presence just so that he could accuse them of running a brothel. The Eye doesn't mention it, but the Firths retaliated by putting photographs of Thurlbeck pleasuring himself on a website. Not a pretty sight.

3) The trial has led to a remarkable change in both the quantity and the tone of coverage given to sadomasochism/BDSM in the media generally. In addition to the giggles and prurience, there has been a genuine attempt to explain the technicalities, appeal and prevalence of these activities. This has been noticed by many involved in the Scene - not least because they have found themselves being approached by journalists (as has the Heresiarch, of course, though for different reasons) and invited to tell their stories. To some, this has been a welcome opportunity, after decades of negative publicity, to put their point of view, even to come out. The comparison has been made with homosexuality 40 years ago: there's the same fear of exposure, bringing the risk of potentially lost jobs and ruined lives, the same sense of being misunderstood and unfairly maligned - or even medicalised - for what is, after all, an entirely consensual and (to those involved) pleasurable activity.

Members of the BDSM community were feeling beseiged even before the Max Mosley situation was exposed, fearful in particular that their right to share and enjoy "extreme" pornography had been threatened by the recent Criminal Justice and Immigration Act, and that with increased background checks now being introduced a new witchhunt could easily develop. To some, Max Mosley is a hero: a person rich enough, Establishment enough, and devil-may-care enough to take on the gutter press and win. Others were scared that the "Nazi" connotations of the "orgy" in Chelsea might serve further to stigmatise their lifestyle. The judge, of course, dealt with that one. The News of the World saw Nazism because they needed to, and because given Max Mosley's parentage it was an obvious angle, the only flimsy pretext they had for a "public interest" defence.

Either way, things may never be quite the same again in the half-hidden world of bondage and spanking. As Niki Flynn put it, Mosley "never wanted to be a crusader for the rights of fellow 'perverts' or he'd have outed himself. But Ooze of the World decided to expose his private life and now the journalistic Eye of Sauron is turned on all of us."

UPDATE 25/7/08 I've written at greater length in the Dungeon about the effect that investigating this case has had on me personally, and also some of the wider conclusions I've drawn. And now I shall put my entirely figurative whips and canes back in the box and go back to wittering on about politics.