Mosley v News Group Newspapers: The Nazi Headline and a Private SM Session

In 2008 an English High Court judgment treated a consensual adult sadomasochistic session as private life, even after a paper stuck a political label on it. Max Mosley, then president of the Fédération Internationale de l’Automobile (FIA), sued News Group Newspapers, publisher of the News of the World. The court found a breach of confidence and an unauthorised disclosure of personal information, and awarded him £60,000. The claim was not mainly defamation. It was that adults who agree to a private sexual session have a reasonable expectation of privacy.

On 30 March 2008 the News of the World ran an article by Neville Thurlbeck. The headline was “F1 Boss has Sick Nazi Orgy with Five Hookers.” The sub-heading was “Son of Hitler-loving fascist in sex shame,” a deliberate link to his father. Oswald Mosley had led the British Union of Fascists in the 1930s. The story rested on a secretly recorded video and claimed the gathering had a “Nazi” or “death camp” element. Mosley sued. He argued that the sex was private in its nature, that the people in the room already had a confidential relationship, and that publishing it invaded his private life. The case ran through the Human Rights Act 1998 and the European Convention on Human Rights, weighing private life under Article 8 against expression under Article 10.

The trial turned on whether any Nazi theme was real. Mosley denied it. So did four of the women. The paper pointed to an imitation German Luftwaffe jacket, striped prison uniforms, a medical-examination roleplay, and the fact that Mosley had shaved his head. It even read one woman’s shout of “Brunettes rule!” as a nod to Nazi racial policy. On the fourth day News Group said it would put no further reliance on Woman E. She was the woman who had recorded the session. She did not step forward and withdraw the Nazi claim herself. Mosley’s lawyers described the video as a standard SM prison scenario. Mr Justice David Eady said that treating everything German as Nazi was offensive. The medical play and the shaved head had nothing specific to the Nazi period. An English alias weakened the Nazi reading. Prison uniforms did not identify the Nazi era. The court found no evidence that the gathering on 28 March 2008 was an enactment of Nazi behaviour, and no genuine basis for saying the participants had mocked the victims of the Holocaust. The paper argued that, even without Nazism, the public had a right to know because of his office. The court’s view was that sadomasochism is not generally a matter of public interest, unless the behaviour mocks Jews or the Holocaust.

For people in fetish communities, the judgment pushes back on a habit: taking any Germanic or authoritarian prop, a striped prison uniform or a military-looking jacket, and filing it as extremism or hate. Eady’s finding was narrower and concrete. Prison uniforms and a medical examination do not, by themselves, re-enact or mock that history. What the court protected was the privacy of adults who had agreed to roleplay in private, including play that can look severe or political, when the Nazi allegation does not hold. It did not turn the session into a public political statement.

Mosley won the case. The noise around it did not stop. The Sun called the day a dark day for British freedom. Others worried that investigative reporting would be chilled. He won a confidence vote inside the FIA, but the scandal sped up an unofficial understanding between the FIA and the Formula One Teams Association that he would go. In 2009 Jean Todt, the former Ferrari team principal, replaced him as president. In France, a criminal case against News Group brought a fine and damages. On the video: in April 2008 his lawyers asked the paper to take down the footage of him and the five women. The paper took it down, then put it back. Eady first refused an injunction because the video was already too widely available. In July 2008 he granted a permanent injunction stopping News Group Newspapers from showing it.

Mosley v News Group Newspapers [2008] EWHC 1777 (QB) is a working authority on three points. Private adult SM can carry a privacy right. A tabloid label does not create a public interest if the facts are not there. A secret recording, and a betrayal of a confidential relationship, can support a large award. The UK Supreme Court later cited the judgment in PJS v News Group Newspapers Ltd. It remains one of the English privacy cases people use when the subject is consensual fetish life.