This week saw a significant setback for Max Mosley in his decade-long war with the UK tabloid press.
The Daily Mail uncovered uncomfortable allegations regarding his youthful political activities and, more significantly, suggested he was less than candid about this in court during his 2008 privacy battle with the News of the World.
More significantly for the rest of us, Theresa May’s fragile Conservative administration yesterday ended four years of Government fence-sitting and promised to repeal Section 40 of the Crime and Courts Act 2013. This is a piece of legislation which has remained on the shelf, uncommenced, and which would impose tough financial penalties on any UK news publisher which refused to sign up to a state-sanctioned press regulator.
But fragile parliamentary arithmetic means the fight for freedom is not over by a long chalk. For Mosley it is a fight for the freedom of people like him to do what they wish behind closed doors without tabloid intrusion. For the press it is the freedom to publish first and then, if necessary, pay the consequences later.
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It all began in March 2008 when Mosley was filmed by the News of the World indulging his penchant for sadomasochism in a Chelsea flat with four paid dominatrices.
It published a video online and plastered his name (then not a famous one) across the front page.
This was a true story about extra-marital shenanigans by a reasonably high profile figure, the then head of Formula 1 – one of the world’s richest sports. But the News of the World was undone by pushing it too far.
The paper reported that the sex party had a Nazi theme, an angle which – given Mosley’s family history – was too good to resist.
Four months later at the High Court a judge ruled that while the role-plays involved German military uniform there was no evidence of that they were Nazi in nature. This was crucial in the decision to award Mosley a record £60,000 in libel damages.
But for him this was nowhere near enough.
He felt the justice system was a farce because the result of him taking the News of the World to court was to have the story dragged through the media all over again and ultimately a huge net financial loss.
And so he began a long campaign against the UK tabloid press which has been astoundingly successful.
He used his financial muscle to provide vital support to Nick Davies of The Guardian during his long investigation into phone-hacking at the News of the World. The story would have come out anyway, but it resulted in the closure of the News of the World in 2011 and the imprisonment of some of the journalists involved in the original Mosley expose.
Mosley was an early supporter of Hacked Off (the group says he is not a financial backer). This is the small but effective pressure group which succeeded in persuading then prime minister David Cameron to hold the Leveson Inquiry in 2011 and then to create the strange botched parallel system of press regulation which exists today.
We have press-owned regulator IPSO which the vast majority of newspaper and magazine publishers are signed up to. It is slightly more powerful than the old Press Complaints Commission but has so far (three years after launch) declined to conduct a single investigation or levy any fines.
To stave off the threat statute-based regulation most national newspaper members of IPSO are now offering a practically free libel and privacy disputes arbitration scheme.
They say this offers the access to justice which was a key part of Leveson’s recommendations. But as the scheme is optional for publishers it is, in all honesty, rather meaningless.
On the other hand we have Impress, almost entirely funded (indirectly) by Max Mosley.
And this is where Section 40 of the Crime and Courts Act 2013 comes in.
Passed in the wake of Leveson by a Parliament still disgusted by the hacking scandal it sought to force publishers into signing up to a system of press regulation underpinned by a Royal Charter. This charter document set out how a regulator should comply with the Leveson recommendations.
Section 40 states that any publisher failing to sign up to a regulator which is compliant with parliament’s charter would face paying both sides’ costs in libel and privacy cases win or lose. This would force any publisher conducting serious journalism to sign up to such a regulator or else spend millions defending stories which were true and in the public interest.
Section 40 would have harmlessly gathered dust on the statute books had it not been for Mosley’s determination and deep pockets. His family charity provided £3.8m to create the first and only Royal Charter-recognised press regulator Impress.
The fact that no major newspaper or magazine publishers have signed up to Impress is by the by. It exists and therefore Section 40, if commenced, can be enforced. Because it means publishers have chosen not to sign up to a Royal Charter-backed press regulator and so should pay the price for ignoring the wishes of parliament.
Yesterday, Theresa May’s minority Tory government ruled out holding Leveson part two into the hacking scandal. It is a move which will see some corrupt former (and perhaps serving) Metropolitan Police officers once involved up in a criminal nexus involving dodgy hacks and private investigators breath a sigh of relief.
But for the newspaper industry it just means it has avoided a costly distraction it can well do without in these straitened times. After a major criminal trial and hundreds of civil payouts there are few skeletons still to come out of the closets of the tabloids on hacking. It was rife at The News of the World and the Mirror titles. It was a disgrace. But thankfully the industry has moved on.
Of more consequence is the stated intention to repeal Section 40.
But while this a setback for Mosley, Hacked Off and the like it is not the end of their war by any means.
Section 40 was passed by an overwhelming majority in the House of Commons. The House of Lords has repeatedly tried to get it commenced. It is highly doubtful that May’s minority government has the votes to get it repealed.
So instead we await the not-unlikely prospect of a Labour government, which would commence Section 40 before you can say sadomasochistic sex orgy.
The press would then be forced to either sign up for Impress (unthinkable) or else (more likely) act quickly to make IPSO Leveson-compliant. The main change this would see is the creation of a compulsory libel and privacy disputes arbitration scheme for all member publishers which was free for claimants.
At a philosophical level this would all be a seen as a disaster for many because it would mean the first state licensing of the press in more than 300 years.
And a practical level the cost implications of easy risk-free litigation could be calamitous for publishers.
But Mosley would have his victory because in risky cases publishers would not dare expose the private activities of public figures. The most interesting stories happen on the margins, where the calls over whether or not to publish are far from clear cut. Lawyers would have a field day in taking such cases to arbitration safe in the knowledge that publishers would have to pay both sides’ costs win or lose.
The sad thing about this all is that is yesterday’s war.
The real battle we should be fighting as a society is for the survival of high quality journalism which holds those in power to account in the face of competition from vast US-based media platforms which are undermining the business models of professional publishers.
The Mosley brigade seeks to further regulate the embattled news industry while Google, Facebook, Twitter and others can commit libel, breaches of privacy, copyright theft, contempt of court and other offences with utter impunity whilst making billions off the back of professionally-produced content.
The newspaper industry, and the tabloids in particular, still have much to do in terms of regaining public trust. And in my view it is a business imperative if they are going to survive long-term in an age when new media means the public holds them much closer to account.
But in terms of the bigger picture Mosley and Hacked Off are now fighting the wrong war if they care about the long-term health of the UK media.
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