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The Public Is Very Interested, but Not Legitimately

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Max Mosley's victory in his lawsuit against The News of the World for reporting on his sadomasochistic proclivities illustrates the dangers of detaching a general "right to privacy" from its moorings in property and contract rights. Yesterday a British judge ordered the tabloid to pay Mosley about $1 million in damages and legal costs, concluding that it had unjustifiably invaded his privacy by paying a participant to secretly record a five-hour S&M session involving Mosley, president of grand prix motor racing's governing organization, and five women in a London apartment; posting sections of the video on its website; and running a front-page story about the "orgy" that falsely claimed it had a Nazi theme. The News of the World has nothing to be proud of, but I'm not sure it violated Mosley's rights. The woman who recorded the session was an invited guest, not a burglar or even a peeping Tom. If she broke a promise of confidentiality, she should be liable for that, and maybe the paper should be liable for encouraging her to do so. But the case against The News of the World did not hinge on broken contracts or trespassing; it hinged on whether there was a "public interest" that justified Mosley's embarrassment. The judge concluded there wasn't, as a matter of law.

The implication is that any reporting on someone's private life, no matter how truthful or how the information is obtained, could be the grounds for a successful lawsuit. I wonder what British judges would make of the reporting on Bill Clinton's sexual relationship with Monica Lewinsky. To this day partisans argue about whether Clinton broke any laws or whether the whole scandal was about a few overblown blowjobs. At least some of Clinton's defenders would argue that his sessions with Lewinsky, like Mosley's session with the black-clad, cane-wielding women, were a purely private matter. No matter how unsympathetic the defendant in this particular case is, it's dangerous to let judges, rather than readers, determine whether embarrassing information is worth reporting.

Jesse Walker noted the Mosley case in April. In a 1992 reason article, I questioned the concept of "informational privacy," noting that it conflicts with freedom of speech.

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  1. The only question I have is how good intelligence gathering must be at “News of the World”. Obviously better than the CIA’s . . .

  2. …it had unjustifiably invaded his privacy by paying a participant to secretly film

    When you contract with another to break the law/cause an injury, don’t you also become responsible?

    I agree what they decided it on was silly, but there were ample grounds to smack the paper around for what they did, as well as to their paid agent camerawoman.

    I think the idea that information (and its dissemination) can be controlled as a matter of law is dicey at best, and probably ridiculous at worst. However, there still should be strong protections restricting the *state* from using information it obtains improperly.

  3. Did the “participant” sign an agreement that she would not film it?

  4. Shouldn’t individuals have some control over the dissemination of their information? Privacy, in and of itself, is a property right and I think the notion that commerce would collapse if the law accorded individuals more control over the dissemination of their information is absolutely unfounded.

  5. You are right Elemenope that many jurisdictions recognize a claim against a party who abets, induces or encourages another party to breach a contract, interfer with a contract or breach a duty of confidentiality.

  6. Is the question of a “public interest” in that knowledge entirely seperable from the question of privacy?

    For example, if this guy has been doing this in the middle of the night outside in Hyde Park, I doubt he would have grounds to complain. Doing something like that in public would involve a different level of “public interest” in knowing what he did. It would also mean that he can’t claim his privacy was violated.

  7. When you contract with another to break the law/cause an injury, don’t you also become responsible?

    What law was broken? What injury was caused?

  8. This lawsuit is a great example of what happens when the press is not protected by some equivalent of the US Constitution and 1st Ammendment.

    Shouldn’t individuals have some control over the dissemination of their information?

    Public celebrities that engage in group sexual encounters pretty much give up the right to control public discussion of those group sexual encounters.

  9. The implication is that any reporting on someone’s private life, no matter how truthful or how the information is obtained, could be the grounds for a successful lawsuit. I wonder what British judges would make of the reporting on Bill Clinton’s sexual relationship with Monica Lewinsky.

    It’s about the only aspect of Clinton that prompts my sympathy.

  10. To this day partisans argue about whether Clinton broke any laws

    Clinton lied under oath.

    but the real scandal is that he was givin a bribe in the form of membership into the White Water LLC.

    Plus he kept FBI files on Republicans within the white house.

  11. individuals have some control over the dissemination

  12. Hell, even married people cannot prevent their spouses from making public statements about their private lives.

  13. Shouldn’t individuals have some control over the dissemination of their information? Privacy, in and of itself, is a property right and I think the notion that commerce would collapse if the law accorded individuals more control over the dissemination of their information is absolutely unfounded.

    For once, libertymike, you and I are in total agreement.

    However, I am concerned about the intersection of such expansive rights with the 1st Amendment speech/press protections. If you say something in my presence that’s supposed to be privileged, I can’t very well “un-hear” it. And since the information is now in my possession, what reasonable restriction could there be to my repeating what I’ve heard or writing it down somewhere?

  14. “British judge”

    This stuff is different in Britain. You can be sued there for stuff that you couldn’t be sued for here. Not sure how this would play out here vs Britain, Britain is different.

    x

  15. “the” mistakes

  16. Public celebrities that engage in group sexual encounters pretty much give up the right to control public discussion of those group sexual encounters.

    Yeah…but…I don’t think they give up the right to know whether one of those members is secretly recording the acts for future distribution. It’s one thing to see and report what was seen, it’s quite another to have a hidden camera upload to YouTube.

  17. thread

  18. libertymike,

    Please explain “privacy is a property right”.

    Do you mean in the context of a warranty of quiet enjoyment?

    Inquiring minds are confused.

  19. The Lewinsky comparison hardly fits because the information largely came from a criminal investigation. And much of the most sensational detail was released by the U.S. Congress, which, perhaps unfortunately, has special privileges.

    Sullum’s assumption seems to be that a public figure has almost no expectation of privacy. Why couldn’t a newspaper bribe Sullum’s cleaning lady to film a “guided tour” of his appartment, including his medicine cabinet, and any and all unsecured documents? He’s a public figure, right? And he could always sue the cleaning lady, couldn’t he?

  20. This thread is useless without pics.

  21. *SIGH* tsk tsk tsk

    Look Reason staff. We’ve been over this before. When you have post the mentions a five hour S&M session featuring black-clad, cane-wielding women, you need to provide a like with PICTURES

  22. like = link
    Bah Shouting typos at people, how silly do I feel?

  23. Bah Shouting typos at people, how silly do I feel?

    I have found in my experience that earnestly shouting gibberish is more effective at arousing bystander curiosity and attention than shouting pretty much anything else.

  24. “overblown blowjobs”
    Ha, HA, HA, HA!!!! Gasps for air, HA, HA, HA, passes out.
    Regains conciousness – O man, where do I get those?

  25. lmnop,

    I don’t think they give up the right to know whether one of those members is secretly recording the acts for future distribution.

    Maybe it is, or should be, different for videos, but in many/most US states, any participant in a conversation can legally secretly record it. Does it matter if its video or just audio?

    Which leads to the following hypothetical that doesnt have anything to do with public figures. Many states have changed their voyeur laws to make things like filming in a dressing room illegal do to an expectation of privacy although in public (although a dressing room owned by a private store isnt really “in public” but you know what I mean – replace with “upskirt on the sidewalk” if you wish). So, if I set up a secret camera in my bedroom and then brought some random chick home tonight does she have an “expectation of privacy” or can I get away with posting the video on the internet tomorrow.

    Really, this is just hypothetical. 🙂

  26. Look, the fact of the matter is that we need to know exactly who our leaders are sleeping with. This is because they invariably engage in nepotism and favouritism towards their friends and lovers. Married politicians who can keep their dicks in their pants are therefore the ideal choice to prevent corruption.

  27. Really, this is just hypothetical. 🙂

    LOL!

    Honestly, I don’t know. I personally think it would be nice if it were required that people be notified before they are recorded in a putatively private act or otherwise normally privileged situation (like, engaging in a sex act), but I’m not sure if it approaches the level of a *right*.

    I’ll have to think on it some more, see what others’ ideas are.

  28. it hinged on whether there was a “public interest” that justified Mosley’s embarrassment.

    I would say the public interest in any S&M orgy is likely to be pretty substantial.

    At least some of Clinton’s defenders would argue that his sessions with Lewinsky, like Mosley’s session with the black-clad, cane-wielding women, was a purely private matter.

    Out here in the real world, anything you do at the office is the company’s business, not a purely private matter. If she’d been sucking him off in his private quarters (well, you know what I mean), this might, might, have some traction. In the Oval Office? No way.

    Privacy, in and of itself, is a property right

    Not sure how privacy is a property right. A little help with that concept?

  29. There are better reasons to eject Max from the FIA than his “dirty-old-manliness.”

    And I have to say, I really don’t care how he, or his dog, get their rocks off, even if it actually does involve a Colonel Klink fantasy.

  30. Not sure how privacy is a property right. A little help with that concept?

    I think the argument would go something along the lines of:

    1. I generate information about me.

    2. That information has cash and trade value.

    3. Thus I have a property interest in information about me.

    I think the thing breaks down on the grounds that property is not a good model, legal or otherwise, for information. Whatever it is, it has value, and is somewhat “property-like” but in other ways isn’t at all like property.

    Not everything with value is property.

  31. Honestly, I don’t know. I personally think it would be nice if it were required that people be notified before they are recorded in a putatively private act or otherwise normally privileged situation (like, engaging in a sex act), but I’m not sure if it approaches the level of a *right*.

    Expectation of privacy. This concept is usually tied to what the government can do with regard to collecting data on you for use in a trial.

    I’m sure that the general public believes there is some meaning to an “expectation of privacy”, but I am pretty sure the laws are different.

    Sex in a public place (park, store, office, etc) — I’m sure there is no expectation of privacy.

    Sex in groups in private places (homes, hotels, etc) — I doubt there is any legal expectation that another person cannot record you (openly or secretly). If you drop your drawers in front of a bunch of people, you should not be shocked when you appear on YouTube.

    Sex between partners in private places. If the couple decides to record the session, then neither partner can complain if the other posts the recording on YouTube unless there was some explicit verbal agreement to keep it private (not a typical part of the conversation given the nature of the activity). However, I would agree that a person should be able to expect that their partner is not secretly recording the session.

    Given the case at hand, Mr, Mosley should have taken a victory lap and bragged about bagging 5 at one time.

  32. Given the case at hand, Mr, Mosley should have taken a victory lap and bragged about bagging 5 at one time.

    Brag about what? Having enough money to buy five women at once? I guess, but I doubt many are overly impressed.

    I’m not sure you get to brag about the girl(s) if you’re paying for them (not that there’s anything wrong with that!). But if some guy tells you about the hot spinner he nailed last night, are you really impressed when it turns out that instead of meeting her at a bar or party or something, he simply dialed an escort service?


  33. Really, this is just hypothetical.

    I read that as hypoethical. In which case, I disagree….

  34. “To this day partisans argue about whether Clinton broke any laws”

    Riiiiiiight. Because there’s any doubt that he committed perjury?

    He committed a felony, violated his oath of office (to uphold the laws, remember) and violated his legal duties as an officer of the court (lawyer, remember?), all to cover up just a few blowjobs. That’s simultaneously stupid, cowardly, dishonorable, and, yes, criminal.

    (Anyone who says there wasn’t sex involved is invited to explain to a ‘thoroughbred’ lesbian that neither oral sex nor insertions of inanimate objects in the vagina are sex, and that accordingly she is still a virgin.)

  35. . . . and that accordingly she is still a virgin.

    Until I fuck her, she’s still a virgin.

  36. Elemenope-

    Come on, we have agreed on other issues.

    Cecil-

    Elemenope’s post at 1:55 makes sense. I would add that Madison’s concept of property embraced matters untethered to money, land, gold, etc. He opined that one’s ideas, thoughts, etc. also constituted property.

  37. Kinnath,

    Im not sure why the expectation of privacy should be different for a group of 6 than for a group of 2.

  38. libertymike,

    I can agree with lmnop post above.

    Privacy is not easily described in a property rights framework. The types of things held in private are certainly easier to fit in a property rights analysis, than the theory of privacy itself.

    Penumbras and emanations and all that being said.

    In an environment of liberty, privacy would be valued less and less. In the new age of hyper-surveillance, the entity to whom I most want to keep things private from is my government, not your god, my wife or my neighbors all of whom I might have been more concerned about a few generations ago.

  39. Im not sure why the expectation of privacy should be different for a group of 6 than for a group of 2.

    Define private

  40. kinnath,

    define private

    2. pertaining to or affecting a particular person or a small group of persons; individual; personal: for your private satisfaction.
    3. confined to or intended only for the persons immediately concerned; confidential: a private meeting.

    Those seem to be the most pertinent definitions. In both cases, I see no distinction between a group of 2 or of 6.

    The question I have is “once someone else is involved, can there be any expectation of privacy?”

    Lets take two things from my earlier hypothetical scenario.

    A. I release secret film of the evening
    B. I tell a friend details of the evening

    A is the one in question. B, on the other hand, happens, and there seems to be no expectation (other than gentlemanliness) that it wont. Is A really any different than B?

  41. there is supposed to be a closing tag after the definitions.

  42. Come on, we have agreed on other issues.

    Undoubtedly. But usually either you or I find something each time to quibble over.

  43. If you drop your drawers in front of a bunch of people, you should not be shocked when you appear on YouTube.

    The Hell!

  44. Lewinsky was a Whitehouse employee. Let’s at least compare apples to apples.

  45. I don’t know that it’s fair to characterize this as _any_ reporting on his private life. I mean, it’s not like they reported that he uses Crest toothpaste before putting on his bunny jammies and curling up in a twin bed 5 feet away from his wife’s.

    I will queasily agree that when it comes to public figures truth should be a defense, but.. that’s easy for me to say as I started pre-emptively bragging about this kind of thing a long time ago.

  46. Brilliant follow-up wondering what the British judges would make of Bill Clinton’s case. Similarly, what would fish make of walking?

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