Privacy and the Limits of the Law

I am indebted to Prof Patricia Sanchez Abril for recently drawing my attention to the British High Court decision in Max Mosley v News Group Newspapers Ltd (July 2008).  This decision proves the point that even when a jurisdiction adopts strong privacy rights within its legal system, these rights do not provide very useful redress for the kinds of harms at which they are aimed.  The reason being that it is very difficult for a court to appropriately quantify damages for a harm that cannot be remedied with monetary damages, and that in order to obtain any redress, the complainant has to relive all the damage in the public forum of a judicial proceeding.

The case involved the privacy rights of Max Mosley, the President of the Federation Internationale de l'Automobile ("FIA").  He apparently has rather squalid sexual tastes and was videotaped involved in a consensual S & M session with a group of women he paid for their services.  The video was made as a result of a reporter from the News of the World paying one of the women to video record the session, and to give an exclusive interview about it.  The story about the S&M session was published in the News of the World with still images, and the video was made available on the News of the World website.

This case has a number of interesting aspects, including Mr Justice Eady dealing with the different harms caused by video, as opposed to text-based, disseminations of private information, a topic I explore in a forthcoming article.  But what really piqued my interest was the level of detail in which the judge explores the S&M episode in order to ascertain whether the newspaper's assertions that it was a "Nazi themed orgy" justified a public interest defense to a privacy action.  This underlines a point made previously by theorists like Prof Abril and Professor Jon Mills that a major problem with privacy law is that it forces individuals who want to bring an action to relive all the shame and humiliation of exposing the private information in the public court records.  Additionally, because privacy claims relate to truthful information - unlike defamation claims - bringing a complaint in court is basically attesting publicly to the truth of the embarrassing or humiliating information.  This point was not lost on Judge Eady as he compared privacy litigation to a defamation case where the monetary award can underline the fact that the information was false - and the court order itself emphasizes the falsity of the information in defamation.

An additional problem with privacy litigation is that most private plaintiffs cannot afford to go to court anyway.  Judge Eady summed all of these problems up nicely in the Mosley case:  "As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action.  Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between." (at para 230).

Perhaps this suggests that those (including myself) who have argued in favor of stronger privacy laws in the United States should really take into account these significant practical limitations - and understand that legal redress may be only a small part of developing sanctions for incursions into human dignity in the digital age.  While law can serve an important communicative function and perhaps some real legal redress in the unusual case, it will only be part of an overall matrix of privacy regulation that must, of necessity, involve emerging social norms, privacy-facilitating market practices, technological solutions, and public education.  I start talking about such a matrix in the article referred to above - and cases like Mosley suggest that this must be the right way to think about privacy in the digital age.  Obviously, I'm not the first person to make this point, but I think that the rise of online video (and multi-media files) - that very intrusively capture intimate details of a person's life, and that can be disseminated globally at the push of a button -  requires more immediate attention to these issues than may have been the case in the past.

Comments

[Patrick McNee]

I am not certain why you believe you have a basis to characterize Mr. Mosley's sexual tastes as "squalid" -- societally disapproved, yes, but is this good enough for the moral judgment you impose?

[Jacqui L.]

I daresay you're right - I apologize for any offense.