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Thursday, July 24, 2008 

Eady lays down the law.

Some, when hearing that the privacy suit brought by Max Mosley against the News of the Screws was to be heard in front of Mr Justice Eady, were confident in predicting that Mosley would be the victor, purely on the grounds that Eady has been one of the judges at the forefront of creating a privacy law through the precedents set by various rulings, especially since the introduction of the Human Rights Act, with its right to a private life having to be balanced against the right to freedom of expression. It's certainly true that his rulings involving Khalid bin Mahfouz are deeply worrying, concerning as they do information which has in no real sense even been published here, leading to the introduction in the United States of the Free Speech Protection Act, so angered they have been by Eady's rulings that have prevented legitimate investigations into Mahfouz's links to terrorist funding from being published.

Ratbiter (who may or may not be Nick Cohen, if anyone knows for certain please drop a comment in) in yesterday's Private Eye opened his piece by mocking Eady's supposed impartiality. However deserving of criticism Eady is for some of his other work, reading in full his judgement today (PDF) ought to show that he had no option other than to rule in Mosley's favour.

It's indisputable, going through, to come to any other conclusion than one which involves the News of the Screws being deeply in the wrong and that their defence was a complete shambles from the get go. When first contacted by Woman E's husband, the prostitute who filmed the S&M session for the Screws, there was absolutely no mention made of any Nazi connotations. Simply, the husband had a story about Max Mosley. Neville Thurlbeck, rang the husband back later in the day without ever making a recording or notes of his meetings with either Woman E or her husband, which is undoubtedly bad journalistic practice to begin with. Woman E's husband regaled Thurlbeck with how Mosley had been involved with his wife, who was a dominatrix, for the best part of year. All of this is recalled from paragraphs 148 onwards, but this one (152) is worth quoting in full:

Mr Thurlbeck asked Woman E’s husband when she would be likely to be attending another of the S and M parties and whether she would be prepared to wear a hidden camera. The original intention was to expose in the News of the World the Claimant’s interest in sado-masochism and his use of prostitutes and dominatrices. There had up to that point been no mention of a Nazi or concentration camp theme. The husband enquired whether there would be “something in it for us” and Mr Thurlbeck indicated that the News of the World would make sure he was paid. No discussion of actual amounts took place at that stage.

It was only afterwards, in a second call, that Thurlbeck claims that Woman E's husband told him there was to be a Nazi theme at the next session with Mosley and the four other women. Again, he didn't make any note or recording of this, but his statement to the court ran like this:

“[The husband] said that this was fascinating because [his wife] had told him that the Claimant had ordered a German theme, that there would be a German-speaking dominatrix at the sex party (in addition to [his wife]) and that the dominatrices had been asked to wear military uniform. [His wife] had been told all of this by a woman whose name was [Woman A] who [the husband] told me was the senior prostitute/dominatrix. From speaking to [the husband], it was apparent that it was [Woman A] (rather than [Woman E]) who liaised directly with the Claimant regarding his instructions for the sex parties. [Woman A] then arranged the parties and their themes."

As Eady later notes:

It is perhaps curious that, at this stage, when giving his account of what he had been told previously, Mr Thurlbeck should omit any reference to a “Nazi theme”. Again, it rather suggests that “German” may have simply been glossed into “Nazi”.

Furthermore:

I am prepared to accept that Mr Thurlbeck and Mr Myler, on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe. Indeed, they needed to believe this in order to forge the somewhat tenuous link between the Claimant and his father’s notorious activities more than half a century ago and, secondly, to construct an arguable public interest defence. ... The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached “in the round”, as Mr Thurlbeck put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered.

When Mr Myler was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of “mocking”
concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with “responsible journalism”.

While disregarding that there was a public interest argument in Mosley being exposed for variously, the allegations of criminality, i.e. that the level of the S&M was such that Mosley himself was being assaulted, dealt with from paragraph 110 onwards and "depravity and adultery", from 124 onwards. He does however agree that if there had been a Nazi theme then it would most certainly have been in the public interest for Mosley to be exposed, which he sets out in 122 and 123.

In case you missed the Screws' original publishings of the allegations against Mosley, they're summarised from paragraphs 26 onwards. In the Screws' hyperbolic style, they don't pull any punches whatsoever, describing Mosley as a "sex pervert", and in the next week's paper as a "vain deviant with no sense of truth or honour."

Eady's decision might have been different had Woman E given evidence. She however, for the supposed reason that she was "mentally and emotionally unfit" to do so, did not appear. Neither, as a result, did her husband, who just happened to work for MI5, from which he has since resigned. If she had, she may well have contradicted to a believable extent the evidence given by all the other dominatrices involved, as well as Mosley himself. As Roy Greenslade argues, Eady may well have been justified in halting the hearing there and then, such was the weakness of the case and the evidence given by the Screws' editor Colin Myler, and the reporter, Neville Thurlbeck. Instead, piece by piece, and devastatingly, Eady picks apart the idea that there was a Nazi theme, beginning from paragraph 44 onwards. Some choice parts are:

There was a suggestion that some of the women were wearing Nazi clothing, but Mr Thurlbeck himself ultimately recognised in a memo, after publication, that what was worn was simply “foreign uniform and ordinary blazer”. He had been addressing in the same email the rather incongruous possibility of a “Nazi blazer”. As the Claimant himself pointed out, if there had been a desire to create a Nazi scenario it would have been easy to obtain Nazi uniforms online or from a costumier. The uniform jacket worn by Woman E had been in her possession before either the 8 or 28 March gatherings were organised and had not been obtained specifically for that purpose. It was there to be seen in a photograph on her website which Mr Thurlbeck inspected.

In the first scenario, when the Claimant was playing a submissive role, he underwent a medical inspection and had his head searched for lice. Again, although the “medical” had certain unusual features, there is nothing specific to the Nazi period or to the concentration camps about these matters. Moreover, no German was spoken at this stage – not least because Woman B appeared later, in time only for the second scenario.

Mr Thurlbeck also relied upon the fact that the Claimant was “shaved”. Concentration camp inmates were also shaved. Yet, as Mr Price pointed out, they had their heads shaved. The Claimant, for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation. He explained to me that while this service was being performed he was (no doubt unwisely) “shaking with laughter”. I naturally could not check from the DVD, as it was not his face that was on display.


The first scenario begins with the words “Welcome to Chelsea” and the Claimant uses
the nom de guerre “Tim Barnes”. One of the “guards” is referred to as “Officer Smith”. These factors lend no support to the Nazi role-play allegation; indeed, they would appear to be inconsistent with it. Moreover, the use of the word “facility” is neutral. It is after all an English and/or American word and has no especially Nazi connotations.

In the second scenario, the young women “victims” wore horizontally striped pyjamas. That may loosely suggest a prison uniform but, yet again, there is nothing to identify the clothing as of the Nazi era. Photographs were introduced by Mr Price, for what they were worth, to show that the uniforms worn in concentration camps tended to have vertical stripes. Pictures were also produced to show a group of people running in the recent London Marathon wearing “prison” costumes. These too had horizontal stripes; yet no-one would imagine that they were in any way making reference to concentration camps or “mocking” their victims (as the News of the
World alleged of the Claimant). I was also referred to the invoice for those particular costumes which were obtained for £11.91 each from a “joke” supplier. I did not find any of this evidence especially helpful, since what matters is the simple fact that prison uniforms worn for S and M role-play do not in themselves echo concentration camps or involve “mocking” the victims.

The use of German on 28 March, in the second scenario when the Claimant was playing a dominant role and Woman B was also present, was said to be largely to please Woman D rather than at the Claimant’s request. Odd though it may seem to many people, as does much fetishist behaviour, I see no reason to disbelieve Woman D’s explanation. In any event, she had been interviewed on a weblog at the end of February when she made exactly the same point. So it was plainly not made up for this litigation. In any case, it is clear that the Claimant threw himself into his role with considerable enthusiasm.


Although Mr Thurlbeck thought the use of German highly significant as one of the Nazi indicia, it is noteworthy that neither he nor anyone else thought it appropriate to obtain a translation before evaluating the material for publication. It contained a certain amount of explicit sexual language about what the Claimant and Woman B were planning to do to those women in the submissive role, but nothing specifically Nazi, and certainly nothing to do with concentration camps.

There was, of course, plenty of spanking, and references to “judicial” penalties, but the only passage which is relevant for this purpose relates to an occasion when one of the women was lying face down on the sofa while being given intermittent and rather lack-lustre strokes with a strap. There seems to be some sort of game involving rivalry between blondes and brunettes. At one point, the dark-haired woman lying on the sofa raises her head and cries out “Brunettes rule!” Within a moment or two, a voice from off-camera can be heard (accepted to be that of Woman A, who is indeed blonde) gasping out words to the effect “We are the Aryan race – blondes”.

Not surprisingly, this has been fixed upon by the Defendant as being a reference to
Nazi racial policies. It is said that the reference to “Aryans” cannot bear any other interpretation.

When asked about this, the Claimant said that he had no recollection of any such
remark being made and, indeed, that it was perfectly possible that his hearing aids would not have picked this up in all the excitement. This naturally invites a certain degree of scepticism, although there is no doubt that the Claimant is a little deaf (as emerged during the course of his evidence) and does wear hearing aids.

What is clear, however, is that the remark was unscripted and that it occurred amid a
good deal of shouts and squeals (of delight or otherwise). One had to listen to the tape several times to pick out exactly what was going on and indeed nobody had spotted “Brunettes rule!” until the middle of the trial. It is also clear that there was nothing spoken by the Claimant on this occasion which reflected Nazi terminology or attitudes. There is no reason to suppose that it was other than a spontaneous squeal by Woman A in medias res.

It is probably appropriate at this point to address another remark from time to time used by Woman B. She uses the term “Schwarze” when she is acting out a dominant role in relation to one or more submissive females. The suggestion was that she was pretending that they were black and racially abusing them. She explained, however, that in German the word is used to refer to a dark-haired woman (or brunette) – such as herself. She said “I am a Schwarze”. It had no racial connotations, so far as she was concerned. Although Mr Warby invites me to reject this, since the German word could also refer to a black person, I see no reason to disbelieve her. It seems more natural to interpret her remark in context as referring to the woman’s dark hair (which she had) rather than to dark skin (which she did not). Mr Warby also submitted that
the references by the two women to blondes and brunettes are not connected. Since they occurred within seconds of each other, I believe that is unrealistic. In any event, it could hardly be suggested that the blondes were accorded any more respectful treatment (as “Aryans”) than the brunettes. One of them is abused as a “dumb ass blonde” (in German) and the spanking is indiscriminate in this respect.

All of this is of a piece with how we know the News of the World operates. Truthfulness and accuracy coming second to huge splashes. Just in the last few months the paper has paid out damages to Cherie Blair, Katie Price and Peter Andre and Robert Murat, all for inaccurate or completely untrue stories. For years it's given not just house room but the front page on numerous occasions to Mazher Mahmood, who has now also on numerous occasions been exposed as being a fantasist, who uses entrapment to snare his victims before ruining their lives. His splashes on the Victoria Beckham kidnap plot were of his own imaginings, while the same was true of the so-called "red mercury" plot, in which all of those on trial were acquitted.

As for Neville Thurlbeck, as yesterday's Private Eye (1215) made clear, his history is less than spotless also, having tricked Colin Stagg, having promised him £20,000 if he took a "truth drug" which showed he had not carried out the killing of Rachel Nickell, or lied on oath or to the police. He passed with flying colours for the reason he was completely innocent - but the NoW seized on a minor discrepancy, splashed with "I LIED ABOUT RACHEL" and denied Stagg a penny. He also completely made up a story about a naturist B&B being a brothel, claiming that the wife of the couple who owned it had offered him a "full sex session with me and my husband for £75". In fact, he offered them £75 to have sex while he watched, and seeing an easy way to get some extra cash out of a spotty moron, they accepted. Thurlbeck claimed in the subsequent story that he had declined the offer, when in actuality, as the couple's security tapes showed, he had not only watched them, but masturbated while doing so.


It comes as little surprise then to learn that Thurlbeck attempted to blackmail two of the other women involved. As Eady writes:

In order to firm up the story, therefore, Mr Thurlbeck decided that he would like to publish an interview with at least one of the participants and, if possible, contributions from all of them.

In pursuit of this objective, therefore, he sent a number of emails. On 2 April he sent identical emails to Women A and B in these terms:


“I hope you are well. I am Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley’s party with you and your girls on Friday.

Please take a breath before you get angry with me!

I did ensure that all your faces were blocked out to spare you any grief.


And soon, the story will become history as life and the news agenda move on very quickly.


There is a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and you[r] face can be
blacked out too. So it’s pretty straight forward.

Shall we meet/talk?”


He became more insistent the following day:

“I’m just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow up we have to our story.

Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you
full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you.

This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won’t be used or your pictures).

Please don’t hesitate to call me … or email me with any thoughts.


Regards and hope to do business.


Neville Thurlbeck, chief reporter, News of the World”


This would appear to contain a clear threat to the women involved that unless they cooperated with Mr Thurlbeck (albeit in exchange for some money) their identities would be revealed on the following Sunday. He was as good as his word and attached photographs and also some extracts from their websites. This was obviously to bring home to them the scale of the threatened exposé.

The threat was then reinforced the same day with a further email to Women A and B:

“Ok girls, here’s the offer. It’s 8,000 pounds for an interview with one of you, with no name, no id and pixilated face. And we pixilate all the pics I send through to you this morning.

BUT time is running out for us and if you want to come on board, you need to start the ball rolling now. Call me … if you want to.

Best, Neville”

Perhaps to their credit, the two women concerned resisted these blandishments and
thus risked the further exposure he had threatened.

This is a pure example of how the journalism practised not just by the News of the World, but by the entire Murdoch stable works. You might recall that last year the sex blogger Girl with a one track mind was threatened in almost the exact same fashion by the Sunday Times, that supposed august organ, stooping to the same level as the red-top tabloids to expose her actual identity.

It's therefore completely impossible to have any sympathy for the News of the World whatsoever. They created this story from the get go, not with any great public expose in mind, but with the pure intention of making money out of someone else's private life. There can't even really be any defence provided by the fact that the women were prostitutes, because again, as Eady notes:

Another argument thought up by the Defendant, or rather its legal team, was that the Claimant had been keeping a brothel. This would not bear close scrutiny and is certainly not consistent with the evidence. By the time of closing speeches, this line of argument had been abandoned. It seems clear from the authorities that for premises to fall within the definition of a brothel it is necessary to show that more than one man resorts to them for whatever sexual services are on offer. The only man enjoying the activities in this case was the Claimant himself. He paid for the flat and Woman A arranged parties there with various dominatrices for his (and apparently also their) enjoyment. This was not a service offered to men in general. He was the only one paying, although I was told that it was a standing joke among some of the regulars that they had so much fun that they ought to be paying “Mike”. There was never any question of a business being carried on there or the Claimant taking a cut of the proceeds.

As it happens, some of the women were rather reluctant to accept the description “prostitute”. (For the purposes of the Sexual Offences Act 2003, the term is defined by reference to providing “sexual services” in return for payment: s.51(2) of the Act.) Several of them offer a variety of services on their website (usually spanking or being spanked in various guises) but expressly warn that they do not offer specifically sexual services. They apparently made an exception in “Mike’s” case and threw in a bit of sex, as it were, as an “extra” between friends. Indeed, sometimes they were not paid at all. As they liked the premises and found the atmosphere relaxing and congenial, things developed from there, Indeed, although the Claimant’s sexual
activity as revealed in the DVD material did not seem to amount to very much, some of the women stayed on after the party was over and indulged in same sex action purely for their own entertainment.

Indeed, quite apart from Mosley paying the women, what seems to have united them against Woman E is both that they thoroughly enjoyed what they did with him, and also that she had broken one of the unwritten rules of the S&M scene in which they were part: that no one talks about it to potentially disapproving ears, and they certainly do not sell their stories. Woman E has apparently been ostracised from the community since as a result.

The last remaining fig leaf some will bring up is the moral issue itself. After all, Mosley was cheating on his wife, and she apparently, despite the potential slight injuries he might have suffered as a result, never had an inkling that he enjoyed being spanked and dominated. Does the exposing of it to his wife, while not justifying it any means by law, justify it in a moral sense? Some will obviously come to different conclusions on that. That his wife has apparently accepted it, and is also apparently supporting him though seems to suggest that even she might secretly be devastated, she is not to such an extent that she is thinking of leaving him.

The reality is that this has been coming for a long time. For far too long the tabloids in this country have been allowed to get away with blatant intrusions into others' privacy where there is absolutely no public interest whatsoever. Again today Sienna Miller is launching an action against the Sun and News of the World for publishing naked photographs of her, despite last year winning damages after they published, you guessed it, naked photographs of her during filming for a movie yet to be released, presumably on what was a closed set. The implication is obvious: that they simply don't care about the consequences when it potentially boosts sales as a result, or in the new digital world, leads to more one handed online clicks to their website. The Mosley case is just one particular new egregious example. No one thought the Screws was going to win, but everyone tomorrow and already online is screaming that this means the end of investigative journalism as we know it.

It's nonsense of course. These are the last wounded cries of a few select hacks and partisan publishers that know that at long last the great game may be coming to an end. This is half the reason why the tabloids so loathe the Human Rights Act: it's not because it's a criminals or terrorist's charter, it's because it has the potential to damage their business model once and for all. The facts are that they have brought it all upon themselves. Eady himself denies that this case sets a new precedent or is landmark in any way:

It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.

Sir Smacks Mosley may not have been the figure we would have liked to have triumphed over the Screws in such a way. It is nonetheless a completely warranted and welcome victory.

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Great post!

*Applause!*

Max Mosley v. News of the World - pity they couldn't both lose.

The Eye article said it all. Mr Justice Eady has made some really bad decisions in the recent past, the Mosley/NotW one wasn't one of them.

I particularly enjoyed this part:

"In fact, he offered them £75 to have sex while he watched, and seeing an easy way to get some extra cash out of a spotty moron, they accepted." — A fascinatingly refreshing take on the tired 'pervs' angle the newspapers like to take.

At the time the Moseley story came out, I remember saying to someone that the Nazi theme is the only reason it is of any public interest. For some reason it never occurred to me that the papers might have thought of this too, and thus had a massive incentive to make it up.

I'm no lawyer, but I think part of the problem is that we have no actual provacy tort.

...'privacy' even.

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