John McLellan: Mosley fights for privacy while Facebook goes back to basics

John McLellan is director of the Scottish Newspaper Society. Picture: Contributed
John McLellan is director of the Scottish Newspaper Society. Picture: Contributed
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The lurid case of ex-Formula One head Max Mosley and the revelations about his sex life in the now-defunct News of the World is a staple of media law courses.

Readers may need no reminding that the paper ran a story alleging that the son of the British fascist leader had indulged in a “Nazi-themed” sado-masochistic orgy with five prostitutes and he sued for breach of privacy. While the Nazi element of the story turned out not to be true, the case hinged on Mosley’s expectation of privacy, rather than accuracy, and he won when the judge ruled the paper’s informant, one of the women involved, had breached Mosley’s confidence and that matters of private morality were not necessarily a matter of “pressing social need”.

Mosley then unsuccessfully asked the European Court of Human Rights to rule that in such privacy cases the subjects should always be informed before publication, which would clearly give the opportunity to seek a court ban. The ECHR said such an order would be an unacceptable limitation on freedom of expression.

All of these details are widely available online, yet last week Mosley launched another court action, this time using data protection laws, to prevent the Times, Sun, Mail and Mirror newspapers from publishing “inaccurate” references to the case.

According to Press Gazette, Mosley’s lawyers seek to force the papers to “rectify”, “block” or “erase” what they regard as inaccurate data and any commentary based on it. The move is seen as part of an attempt to shut down criticism of the rival newspaper regulator, Impress, which is almost entirely funded by Mosley’s family trust, but the folly of the latest action was pointed out by a member of the Impress board, journalist David Leigh, who described it as an “attempt to put the cat back in the bag”.

Perhaps Mosley hopes to follow the success of a well-known entertainer who has managed to maintain an injunction banning publication of details widely available globally about his sex life, but then that cat never officially got out the bag.

It is beyond irony that social media giant Facebook is resorting to sending postcards though the mail to check the bona fides of American political advertisers to prevent breaching federal laws which ban foreign organisations from involvement in political campaigning. Under pressure because of recent revelations about covert Russian operations to influence the result of the presidential election, sending a hard copy to the postal address of the advertiser with a registration code was the only reliable solution it could find.

While it only applies in the US, it is a breakthrough because it represents Facebook’s acceptance of responsibility for the legality of the material it distributes, paid-for or otherwise.

- John McLellan is director of the Scottish Newspaper Society