Max Mosley's Hanky Spanky, and Punitive damages.

The News of The World likes a bit of sex, doubly so if there is spanking and trebly so if they can call it a sick and deprived Nazi sex orgy. It sells papers after all and the bottom line profit is what it is all about.

They got a lead on a "dirty old man" who liked to pay for kinky sex. Lets face it, on the face of what is admitted it was fairly kinky.

The News of the World contends that this was a sock and depraved act. The Editor claimed he would not have gone to press with the story had it not involved Nazi role play. (Does anyone including him believe that?)

The problem for the News of the World is that all those involved bar their "whistle blower" have said it was not, and the video seems to be inconclusive at best. Then of course their witness E failed to testify due to emotional issues. I have no doubt this was not due to intimidation on Max Mosley's part, so you have to wonder what she was so concerned about?

It is an interesting case. Max is upset according to the BBC, because:

Mr Mosley has told the court previously that the publicity has been "totally devastating" for his wife of 48 years, and he could think of "nothing more undignified or humiliating" for his two sons to experience.

Well that is a fair reason to be upset but you can't help but feeling that he could have avoided upsetting his wife by being faithful.



So what of privacy which is at the heart of the issue? Does Max Mosley have the right to do what he likes in his private life? Well having affairs is not illegal, nor is using prostitutes nor in fact sadomasochism. We may feel that cheating on his wife is wrong, but enjoying kinky sex you would not want to tell your kids about, well, I mean would you want to tell your kids and all their friends?

It seems to me that the News of the World have be in trouble having linked the publication to a Nazi fantasy after all Sir Oswald Mosley was a famous fascist, and would not have published otherwise, thus accepting the fact that Max cheated on his wife as not worthy of publication.

However there is one final interesting bit to this case, that of exemplary and punitive damages which are being asked for. In this BBC article they are described as "unprecedented" which is, of course precisely untrue, but then again what can you expect of journalists?

Punitive damages are available to English courts and perhaps always have been. It is just that lawyers seldom have the balls to ask for them nor do they present evidence that would justify them.

There is a clear precedent in English law as well as the common law of the United States of America. In English law there is the case of Rookes v. Barnard [1964] AC 1129, 1167 in which Lord Devlin said that punitive damages were available where:

1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
2. Where the defendant's conduct was 'calculated' to make a profit for himself.
3. Where a statute expressly authorises the same.
   

Clearly the News of the Worlds actions would fall into the second category. There are too many instances where a party can get away with making a profit from committing a wrong because they know they will either get away with it, or that the costs of being called to account will be less than the profit of committing the wrong or more usually a combination of the two.

For that reason and that reason alone, I hope that cheating git Max Mosley wins his case and wins it well.

For a further discussion on gains based damages I recommend James Edelman's book, Gain-Based Damages published by Hart Publishing.