The Public Is Very Interested, but Not Legitimately
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.