Mosley had the right to enjoy S&M in private

It could have been an awful lot worse for the News of the World. Max Mosley and his legal team were asking for punitive, exemplary damages which could have run to millions. For that to have succeeded, Mr Justice Eady would have had to find that the newspaper printed its story about the motorsport chief's S&M 'orgy', with all its embellishments, knowing it not to be true.

In the event, Judge Eady awarded Mosley £60,000 in compensatory damages in his breach of privacy action against the newspaper as well as £200,000 in costs. As is so often the case with News of the World reports, the story was part true, and this probably saved the paper from the much more serious penalty Mosley sought.

Those listening to the News of the World reporter Neville Thurlbeck giving evidence earlier this month left the court in no doubt that when his informant, a dominatrix referred to in court as Woman E, first came to him with news of an S&M booking with Mosley, Thurlbeck identified an angle that would heighten the profile of the story he wanted to write. And so he set about making sure it was there.
 
'Max Mosley being whipped by five hookers' would still have made a front page splash for the News of the World, but 'Max Mosley in sick Nazi orgy' would make an even better one.

Thurlbeck equipped Woman E with a video camera, showed her how to operate it and told her to make sure she got in close to get a 'Sieg Heil' salute from Mosley. When she brought the video back, he was so disappointed that he gave her only half the money he'd promised.

In court, although it was comprehensively shown that there was no 'Nazi' element to the S&M sessions, Mosley did not deny that he had taken part in them.

Nevertheless, the judge declared that "the claimant had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property." He also found that there was no evidence that the gathering on March 28 was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes.

He acknowledged that "there was bondage, beating and domination which seem to be typical of S&M behaviour. But there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website ­ all of this on a massive scale."

He added that while this sort of activity is viewed by some people with distaste and moral disapproval, in the light of modern rights-based jurisprudence it didn't justify the intrusion on Mosley's personal privacy.
 
Judge Eady, who has presided over and found in favour of the claimants in a number of similar actions in the past few years, was at pains to point out that he was not handing down a 'landmark' judgment. No doubt aware of regular murmuring in the press about restraints of free speech caused by judgments such as this, he said he did not consider that serious journalists investigating crime or wrongdoing with a genuine public interest would be inhibited by it.
 
Despite his reservations, the fact that he has handed down one of the largest awards ever made in a breach of privacy action will be seen as significant in the development of privacy law in Britain. As long as there is no statutory definition of privacy in the UK, it is only through decisions like this that a clearer understanding of 'privacy' will emerge.

Some commentators will claim that this victory for Mosley will set a precedent in the way rich and powerful individuals are allowed to go about protecting their privacy, as if this were an unsavoury ambition that applied only to the rich. It will in the end offer all members of the public protection for their privacy from unwarranted media intrusion.
 
The position will only effectively be clarified when Parliament is prepared to face up the major press corporations and establish a statutory offence of Invasion of Privacy, with a clear definitions of 'Privacy', and 'Public Interest' as a defence for such offences.

In the meantime, with the News of the World having to pay its own legal costs on top of Mosley's, News International will be some £460,000 out of pocket. But that represents a small part of the Sunday paper's annual marketing and news gathering budget, and in return they've seen 1.5m extra hits on their website, and have just re-established themselves as the top-selling newspaper in Britain. ·