So, Max Mosley has failed to convince the European Court of Human Rights that newspapers should be required to alert private individuals to impending publication of details about their private lives. By and large most people are breathing a sigh of relief that what many view as a serious and unwarranted curb on press freedom has thus been avoided.
That view is well-founded, and in most respects I share it. I have never really been able to get too worked up when the gap between the carefully manicured public images of the rich and famous, and the seamy reality of their actual conduct, has sprung suddenly and dramatically into the public realm. In Mr Mosley’s case one might well argue, as he has done, that his sexual proclivities are no-one’s business but his own, although his wife and children might beg to differ. But if you indulge in activity that, once discovered, might paint you in a ridiculous or unflattering light, presumably the best mitigation is not to indulge in it. It does seem special pleading at the very least to argue that the good things in one’s life should be open to everyone’s admiration, but the less good things must be protected from everyone’s scorn. That, I think, is wanting to have one’s cake and greedily consume it too.
On the other hand, I don’t agree with some of the arguments put forward by the press in resisting Mr Mosley’s legal challenge. Those arguments are much too black and white, and are frankly also more than a little puffed-up. The Trafigura super-injunction is constantly wheeled out as proof that any attempt to constrain press freedom about anything at all will inevitably allow bad behaviour to go undetected. In this version of the world, the press is characterised as some sort of knight on a white charger, selflessly protecting the body politic from all sorts of hidden evil. The key thing wrong with that is contained in the word “selflessly”. The idea that the press want to reveal things only because the public good is thereby protected and enhanced, but with no advantage for the press itself, is laughable. For every Trafigura scoop by a serious newspaper there are innumerable kiss-and-tell stories about minor and tedious celebrities of dubious worth engaging in sexual misdemeanours of every imaginable (and some that I’d never imagined, but that’s probably because I don’t get out as much as I should) type and frequency, of which the only beneficiaries are the newspapers concerned. I simply don’t buy the attempt by the tabloid press in particular to capture the moral high ground.
The key objection to Mr Mosley’s attempt in the courts is not so much about the right of newspapers to publish, but about whether judges should have any role in determining or constraining that right. Newspapers have consistently shown themselves to be incapable of distinguishing between the public interest and what things the public might be interested in – especially if those things have a prurient element. That is largely because the papers have a vested interest in terms of their circulations and commercial gain. That’s not wrong, but it doesn’t make them disinterested arbiters. It’s hard to know whether the judges have a better record, because by definition we’ve no idea how many cases come before them, at least in the “super-injunction” category. But I’d rather put my trust in the average judge than in the average tabloid editor, and judges do not have such an obvious a priori interest in publishing or not publishing.
Notwithstanding these concerns, I do on balance return to my starting point of broadly welcoming the ECHR’s decision, but it’s a close-run thing. And I note, also, that newspapers routinely ride rough-shod over the interests of non-celebrities such as defendants (or worse, those who are merely temporary suspects) in serious criminal cases whenever the mood takes them. Ask Mr Christopher Jefferies, the man whose private life was ripped apart and dissected in January during the Jo Yeates murder inquiry. Was that in the public interest? I don’t think so.