Max Mosley injunction against News of the World refused

This morning brought yet more bad news for Max Mosley as he has lost his first legal case against News Group Newspapers, the News International subsidiary that publishes the News of the World. Mosley had wanted the videos and images of his alleged Nazi-themed sex orgy to permanently removed from the News of the World.

But today that injunction was refused and the newspapers has hit back with a double-whammy. In addition to republishing the original video, the newspaper has uploaded two audio clips that depict Max Mosley speaking English in a mock German accent. One of these is the already infamous quote, “Zey need more of ze punishment I sink.”

The purpose behind publishing the new audio clips is to counter Max Mosley’s claims that the only reason he spoke German during the session was because some of the prostitutes themselves were German. This is at the heart of Mosley’s attempts to disprove claims that the session had a Nazi theme. But it does not explain why Mosley would be speaking English in a fake German accent.

It is very interesting that, as Pitpass noted last week, Max Mosley is not suing the News of the World for libel. You would think that if the allegations were false then Mosley would have little difficulty in winning a case against a newspaper which has put forward such over-the-top and cartoon-like allegations. This would particularly be the case in the UK which has famously strict libel laws. The fact that he is not suing for libel makes Mosley’s denials seem pretty empty.

Max Mosley appears mostly to be concerned about the invasion of privacy which the FIA has described as “apparently illegal”. It is worth remembering that less than a year ago such apparent illegalities were of no concern to Max Mosley as long as it assisted him in his personal vendetta against Ron Dennis.

As Grandprix.com reminds us, the World Motor Sport Council met in September to discuss a list of text messages and phone calls between Mike Coughlan and Nigel Stepney. The validity of the evidence was brought into question. Here was Mosley’s response:

The World Council’s only concern is whether that list is accurate and truthful. We are not concerned with whether there are issues over how that is obtained. Unless there is evidence that it is forged or inaccurate, we will take it on its face value. We do not enter a debate about Italian law; we have neither the time nor the skills for that.

Funny how he sings a different tune today. Max Mosley’s defence appears to be crumbling.

Today’s events, however, represent a real legal stumbling block for Max Mosley. The injunction was refused on the basis that the video is already in the public domain and you cannot reasonably expect to remove it from the public domain. This is the same argument that has been used by those who are arguing for Max Mosley to resign. It is a good point.

However, as Craigblog points out, it is nevertheless surprising that this ruling went against Max Mosley. Had the injunction been granted, it would have sent out a strong message to everyone about the use of this video.

Now, media outlets have effectively been given absolute free reign to use it. As we have seen, the News of the World has now taken the opportunity to upload new clips. And at lunchtime today I was amazed to hear the original video clip being played in full on BBC Radio 5 Live. If the video was in the public domain in the first place, today it is in the public domain deluxe.

Meanwhile, it has been announced today that the FIA General Assembly will now meet on 3rd June. This will include a confidence vote which will be held as a secret ballot. I would be amazed if Max Mosley were to win the vote. Meanwhile, the FIA will be lumbered with a lame duck President for almost two more months.

9 comments

  1. What amazes me is that everyone seems to be falling for this EGM nonsense. It is clear that Mosley should step down immediately to protect the reputation and image of the FIA, at the very least on a temporary basis until it is proved that the Nazi allegations are false (good luck to him on that one – it’s pretty obvious from NOTW’s recordings). The matter of his suit against NOTW is a private matter and should not concern the FIA. Mosley called the EGM as a delaying tactic and it is absurd that everyone meekly accepts it.

  2. Clive, I accept it because now that a ‘vote of confidence’ has been called, I realise it is the best way to get rid of him. The journey from A to B is irrelevant, the result is imperative. Will Mosley stand down of his own accord? Unlikely. Will he get voted out on June 3rd? Likely. Thus, I support this decision by the Senate and wait, anxiously on the very edge of my sofa, for the result. It’ll just take a few more weeks. Humiliation is ‘over the head’, the end result is the gravy.

  3. The trouble is that there are only two ways Max can legally leave his post prematurely:

    1) He resigns (which he won’t do; he simply refuses to accept that he’s done any wrong)

    2) The World-Council-and-EGA process (or double-EGA, as it looks like being) is followed.

    If you feel the need for an option 3), blame the FIA Statutes, for they have forced this matter.

  4. It’s pretty clear that Max is pursuing the privacy route rather than the libel one because a defamation case would involve much more scrutiny of the video in court (which would then be widely reported). The legal test would concern whether the paper’s allegations caused him to be “lowered in the estimation of right-thinking members of society”. A useful comparison here is Gillian Taylforth’s unsuccessful libel action against the Sun in 1994; although they were having difficulty proving the actual allegation, their brief managed to find a video of her at a party, performing a simulated sex act on a champagne bottle. Thus they were able to say that her actions in the past proved she had little claim to sexual propriety. There was no discussion about whether showing the video infringed her rights to privacy.

    In the Mosley case, any libel action would revolve around the video – as the NOTW sought to prove their allegations true. The ‘sting’ of the libel is not the spanking but the supposed subtext. By making it a matter of privacy – disputing not the content of the video, but whether it should have been shown in public – the focus moves away from the Nazi allegations. The test in a privacy case is whether a person of ordinary sensibilities would view disclosure of the private information as objectionable; and in certain circumstances (such as in a private house) there’s a stronger expectation of privacy than in others. Hiddden camera stuff is particularly frowned upon. It’s a complicated area. The NOTW is arguing that there’s a strong enough ‘public interest’ case here to justify the intrusion – but remember that to a High Court judge ‘public interest’ doesn’t mean ‘what interests the public’. Mr Justice Eady was explicit on that count: “there is no legitimate public interest in its further publication.”

    In that case, you have to declare yesterday’s court action a draw: Max failed to take the video out of circulation, but the NOTW now knows their public interest case is feeble. Unless they’ve been keeping their powder dry – in which case, look out for more revelations on Sunday…

  5. You’re welcome. If you want to do some further reading then McNae’s Essential Law for Journalists is quite an accessible read. Within a few years F1 blogs are going to start breaking news rather than merely passing comment on it, and when that happens their authors will need to be prepared…

    I read a comment on a blog – maybe here, maybe elsewhere – which said, in effect, “No one will sue me – I don’t have any money.” This is a rather daft statement; if you publish something that’s damaging enough to somebody then they’ll come after you – through the courts or by other means (the infamous “white van job”). A mate of mine once fielded a call from a senior motorsport figure who tersely introduced himself before growling, “Get your facts right before someone cuts your balls off.”

  6. It was Clive who said that.

    When Guido Fawkes got a grilling on Newsnight, Michael White said the reason no-one sued him was because he wasn’t worth suing because he didn’t have any money.

    Nonetheless, you are probably right Vilehackwriter. The only reason bloggers aren’t sued yet is because they don’t matter a jot. Suing us would only bring more attention to what we said. If we had readerships as large as the Sunday newspapers, I’m sure we would be sued if we stepped out of line whether we had money or not.

  7. I read somewhere, and not sure if it is true or not, that S&Max himself arranged the taping of the proceedings, presumably so that he could relive the moment later. Clearly then a copy was made, or left behind.

    Makes his case a little more tenuous then, don’t you think?

    Also, if as I suspect, one of the hookers sold the tape to NOTW – given she is in the video, how then is it not allowed for her to sell a video of herself to a newspaper? You can argue that consent from all the participants should be required but I think that is on shaky ground.

    Take a show like Funniest Home Videos, where people send in tapes of famiy/friends having mishaps. Do all of those people have to give consent before the tape is shown, or is implied consent enough?

    Someone more legally minded than me can probably answer those questions – but I am betting that NOTW had already thought all of this through before they published the story. I really think Mad Max is just throwing good money after bad with this endeavour.

  8. Doctorvee – Interesting one… sounds like Michael White was being a bit petulant. There’s a disappointing tendency among hacks to think that readers are all idiots – that they should just shut up and be told what’s what. And it manifests itself in this patrician snottiness towards bloggers, whom they seem to regard as impertinent amateurs (mind you, it must be quite galling to have your work dissected publicly by the likes of Media Lens).

    Pink – If you send a video of yourself to one of those TV shows you’ve kind of forfeited your right to the contents being private. And I’ll bet that when you get your cheque for £250 (or whatever they pay for submissions) it comes with a mini-bundle of legal docs saying that by accepting payment you sign over the copyright of the video and indemnify the TV production company against actions arising from the contents.

    Did Max know he was being filmed? That’s one aspect that seems to have been lost in the flurry of speculation about this story. Have you ever noticed, while perusing the shelves of DVD rental outlets, that for every blockbuster genre movie (such as Gladiator or Lord of the Rings) there seems to be a soft porn ‘re-imagining’ – usually not too far along the shelf? Maybe this video was supposed to be a low-budget, x-rated re-enactment of The Producers… or ‘Allo ‘Allo. Could it be that when the NOTW post a fresh bunch of clips we’ll be treated to some burlesque japes featuring the drug in the jug, the pill in the till, the candle with the handle or the gateau from the chateau? The mind boggles…