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Thursday, July 17, 2008
Max Mosley's S&M Escape Leads to Privacy Lawsuit

You have to give Max Mosley, the President of the Federation Internationale de l'Automobile (FIA), credit for fighting back. After secretly-recorded videos revealed him in a sado-masochistic role-play with five women (paid about $5,000 in cash for a five-hour session), he has decided to sue and hold on to his position at the helm of the organization.

The tape was given to "News of the World" an English tabloid newspaper which makes its business publishing gossip and celebrity stories. According to the Sydney (Australia) Daily Herald, the week before its Mosley story, the News Of The World published photographs of a Premier League football club manager indulging in consensual sex with an adult woman six years earlier. The Mosley video showed him counting in German — “Eins! Zwei! Drei! Vier! Funf!” — as he used a leather strap to lash one of the women. “She needs more of ze punishment!” he cried in German-accented English. One woman appeared to search his hair for lice while another called off items on an inspection list. Mr. Mosley, naked, was bound face-down and lashed more than 20 times. More background is found in the New York Times article here. One of the women had a hidden camera and did the taping. The News of the World article is found here and is worth a read to put the case into context. The video is found here.

The FIA is the international governing body for international motorsports, including Formula-1 racing. Like many leads of international sports organizations, Mosley wields considerable power. Since there are no team owners or players representatives to create and checks and balances system, Mosley and others in his position often have control over sponsorships, schedules and sanctions (although there is an appeals process in the FIA rules). Also, like many of his brethren in other such organizations, he is not universally loved and lives baronially. Commuting in the FIA's £15million executive jet between his homes in London and Monaco, is not going to make him a man of the common folk.

That could be one reason that the video resonated strong reactions by the larger participants. Shortly after it was broadcast (portions available on the Internet), four of FIA's leading participants --Mercedes-Benz, BMW, Toyota and Honda - demanded his removal. Also F.I.A.-national governing such as the American Automobile Association and its German counterpart, sought his exit. It is natural that German auto makers and organizations would want him out, given their historical issues. However, another reason - family background - looms large over this issue. Mosley is the son of Sir Oswald Mosley and Diana Mitford, two card-carrying fascists (he headed the British Union of Fascists) and Hitler admirers who were marred in the dictator's presence. Although it may be unfair to have to carry this baggage, it is part of his identity. Even though he may not carry the views of his parents, an S&M video of allegedly "Nazi-type" activities casts a wide shadow over him.

Mosley fought back by retaining his position and control (his term ends next year) with the help of smaller national bodies. Then he filed a lawsuit against the newspaper based on violation of his privacy rights. The case is currently being heard in London. An earlier attempt at a prior restraint against the newspaper to prevent distribution of the video was defeated, since it was already widely available. However, things seems to be going Mosley's way during the trial. The woman (identified as "Woman E") failed to testify because of her "emotional and mental state." The other women denied that the ritual was "Nazi" refuting the lurid tabloid headline by the News of the World (and other tabloids, to be sure). I will leave it to readers to decide the level of Nazism found in the activity.

English law is more sympathetic to privacy claims by public figures than in the United States, which gives more protection to the press under the First Amendment. Yet, he could win here as well, although the First Amendment creates a more difficult barrier. In the United States, a case could be brought on one of two privacy claims, intrusion or embarrassing private facts. Intrusion requires that the plaintiff have a reasonable expectation of seclusion and that this seclusion is intentionally invaded in a manner highly offensive to a reasonable person. In the U.S., this is a normally a jury question, but many cases involve non-public figures. Technically, a public figure (such as Mosley) is treated the same as a non-public figure, but given his status and family background, a jury may not be as sympathetic.

Embarrassing private facts concerns the publication of truthful information concerning the private life of a person that would be both highly offensive to a reasonable person and not of legitimate public concern is an invasion of privacy in a number of states. Liability often is determined by how the information was obtained and its newsworthiness. Here, too, a jury would decide whether Mosley's notoriety outweighs the private activity. But the issue of newsworthiness comes to play. Is this so newsworthy as to trump those rights? It would be an crucial question.

The ruling should come down quite soon in the Mosley case and a number of articles I read cite legal experts who think it could set an important precedent. However, in addition to the fascinating law questions (I can't hardly wait to make this a moot court case for my class), there are ethical and business issues as well. Is all this relevant to Mosley's role at FIA? Or, given its high-profile, should Mosley be dismissed for such conduct, if it would hurt the business of auto racing and harm his relationship with sponsors and affiliates? And if so, what damages should News of the World pay?


The court case clearly is irrelevant to FIA's decision about keep Mosley in charge. The video has already been published and may or may not have an effect on their business. Whether the newspaper had the right to publish the video and whether the publishing has in fact damaged Mosley's reputation has nothing to do with FIA's business.

I also think that Mosley's sexual preferences don't impact his capability to run FIA. Him having Nazi sympathies is rather more serious. In an ideal world, FIA would make a detached business decision.

That said, I suspect that many people won't judge things in such a detached manner. For this reason, Mercedes-Benz surely should not want to be associated with this guy, and I don't see any way for him to stay on.

Anonymous Anonymous -- 7/17/2008 3:23 PM  

I can't really think of an analogous case. It tends to fall into an area that courts typically deem "private" (sexual relations). And I recall a judge in the U.S. agreeing with Pamela Anderson and Brett Michaels that their "sex tape" provided no social value and therefore was not newsworthy. I'd say he's got a pretty good case in England, and he'd probably prevail in the U.S. too. It's pretty bad.

He has a possible claim for false light as well. He is made to seem pathetic and ridiculous, and that he lacks good taste ("a secret sadomasochist sex pervert"), not to mention the Nazi references. There is precedent even in the U.S. that would support Mosley.

And what are the damages? A lot....

Blogger Rick Karcher -- 7/17/2008 3:58 PM  


Good points. On the false light issue, I see your point, but the doctrine is limited due to the malice standard that was extended from defamation law. The intrusion and embarassing private facts would be stronger, as you note.

Blogger Mark Conrad -- 7/17/2008 4:54 PM  


I'm aware of the cases that have stated in general terms that the defamation law actual malice standard extends to false light claims, but it's never been clear at all how the actual malice standard even applies to false light claims because a false light claim doesn't require the statement to be false -- which is what distinguishes the claim from defamation. So assuming Mosley is a public figure, he doesn't need to prove that the publisher knew it was false or acted with reckless disregard as to its falsity. Instead, Mosley would argue it's true, but that the context in which he is being presented degrades him and makes him look like something he isn't.

Blogger Rick Karcher -- 7/17/2008 7:26 PM  

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