those now-infamous headlines on the Sunday morning of their publication had brought with it, “in an instant”, the realisation his life had irrevocably changed.5 On the one hand, he had been scrupulously discreet in keeping his unorthodox erotic preferences a private concern for forty-five years, and, on the other hand, he had for more than forty years sought to distance himself from his father’s legacy. It was this latter quest for his own identity that led to his life in motor racing in the mid-1960s.6
A landmark invasion of privacy
Mosley, who had been elected to the FIA presidency in 1993, was subjected to international moral outrage, ridicule and intense pressure to resign, but with a clear sense that his private erotic practices were separate from his job and did not hinder his ability to perform his duties, he endured the outrage and on 3 June 2008 won an FIA no-confidence vote 103–55 to hold his presidency until he retired in October 2009.7 Mosley’s early attitude towards the NotW exposé is one he has consistently maintained, and it is summed up in a letter he wrote to the president of Europe’s largest automobile club before the Bahrain Formula One Grand Prix fixture of 4–6 April 2008 and reported in the press at the time:
Had I been caught driving excessively fast on a public road or over the alcohol limit (even in, say, Sweden where it is very low) I should have resigned the
same day... As it is, a scandal paper obtained by illegal means pictures of something I did in private which, although unacceptable to some people, was harmless and completely legal.8
To those for whom motor racing is one of life’s irrelevancies, the predicament of the FIA’s president in 2008 may also seem irrelevant. However, the Mosley scandal, besides a graphic example of the UK tabloid press at its most savage, has led to two court cases that have driven a passionate and often-bitter debate on what is characterised as, and, indeed, may yet come to be in fact, the development of a UK privacy law.
Although the invasion of privacy and international exposure of Mosley’s erotic pursuits were the official casus belli of his first legal action against the News of the World, it was the tabloid’s Nazi allegations that determined his strategy to sue for breach of privacy in the first instance and to consider libel suits at a later date. Mosley has since publicly explained on numerous occasions the reasoning behind this strategy: his position at the FIA at the time of the exposé made it “absolutely essential to nail the lie about the Nazi aspect” of the resulting scandal, and a breach-of-privacy case could, and was, brought to court quickly, while a defamation case would have taken up to two years to come to court.9
Mosley’s breach-of-privacy suit against
News Group Newspapers Ltd, the company that published the News of the World, was heard in the High Court of Justice, London, 7–10 July and 14 July 2008.10 The five-day hearing became a spectacle featuring both drama and humour, with the court learning that the husband of “Woman E” – the dominatrix who betrayed Mosley and the four other participants in the private BDSM session of 28 March 2008 – worked for the UK domestic security service, MI5, and it was he who approached the News of the World to sell an exposé of Mosley; how the News of the World promised to pay Woman E and her MI5 husband £25,000 to deliver the “splash” but only paid them £12,000; how the News of the World’s chief reporter, Neville Thurlbeck, offered “a choice” –
/ Justice Eady: 'an unlawful intrusion [had] taken place' /
payment, or exposure with published photographs – to two of the other four women in a failed attempt to coerce them into granting an interview for his follow-up story on Sunday 6 April, behaviour that Justice David Eady in his judgment referred to as a “threat” in the broader context of “blackmail”; and how Woman E, the News of the World’s key defence witness, failed to appear in court with only hours’ notice that she would not testify because of her “emotional and mental state”.11
Thurlbeck and NotW editor, Colin Myler, failed to present a coherent argument to support their allegations of Nazi role play. Evidence even emerged that Thurlbeck admitted to then NotW news editor, Ian Edmondson, that the elements of uniform worn by some of the women in the BDSM session were “not Nazi uniforms [but m]erely foreign uniform”. This revelation prompted Justice Eady to suggest “that ‘German’ may have simply been glossed into ‘Nazi’”;12 ultimately, the judge dismissed the News of the World’s allegations of Nazism:
I am prepared to accept that Mr Thurlbeck and Mr Myler, on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe. Indeed, they needed to believe this in order to forge the somewhat tenuous link between the Claimant and his father’s notorious activities more than half a century ago and, secondly, to construct an arguable public interest defence.
…this willingness to believe in the Nazi element…was not based on enquiries or analysis consistent with “responsible journalism”… the judgment was made in a manner that could be characterised, at least, as “casual” and “cavalier”.13
On the morning of 24 July 2008, Justice Eady declared that “an unlawful intrusion [had] taken place” where Mosley “had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property”, and handed victory to Mosley.14 Eady awarded £60,000