by Max Mosley
Moreover, the FIA’s contract with Bernie further strengthened our position and would prevent him getting together with the teams and attempting to operate outside the FIA. He still wanted to extend its life beyond 2010 but the commission would not agree an extra ten years. Indeed, they considered the existing 15-year deal too long. They asserted that under EU law, we could not make a contract with a particular entity for more than three to five years.
But there was nothing to prevent us selling outright whatever rights we had in the Formula One World Championship, which we could do without breaching competition rules. So, with our lawyers, we hit on the idea of a long lease. As the length of a lease grows, we argued, it becomes increasingly close to a freehold or an outright sale. As there was no competition law objection to an outright sale, we suggested we sell the rights for a hundred years.
This, we explained, would be virtually indistinguishable from an outright sale but, like the owner of leased land in the UK, we would retain certain veto controls over Formula One, in particular the right to ensure sporting fairness and minimum safety standards as well as media access by the public. This was analogous to the way in which the great leasehold estates in England retain all sorts of rights to enforce rules about what their leaseholders may and may not do. It was also consistent with our mandate for safety and fairness.
The Brussels legal establishment thought this couldn’t possibly work – if five years was the limit, they said, a hundred years was outrageous. But they had not really understood the concept that our outstanding Brussels legal team, Stephen Kinsella and Ken Daly, had come up with. More importantly, the group by then working on our case in the commission and Mario Monti himself had fully understood the concept and agreed with it. Our lawyers later received a prestigious award for their work on our case from the relevant branch of their profession.
Meanwhile, Van Miert had retired to his home base in Belgium. He produced an autobiography, Markt-Macht-Wettbewerb (Market-Power-Competition), sadly not available in English, in which he revealed that Bernie had sought a meeting with him. He said that when they met, it turned out to be like a sort of confessional, with Bernie telling Van Miert he secretly hoped eventually to become president of the FIA. I can just picture the scene and, had I been there, it would have wrecked everything. One of Bernie’s regular complaints about me was that I could never keep a straight face. In Balestre’s day I used to have to knock papers onto the floor during World Council meetings so that I could laugh unobserved under the table. I learned to do this in my Bar days, at a planning inquiry where an expert witness began his evidence with the words, ‘I’ve been in sewage all my life.’ It was typical of Bernie to wind up someone like Van Miert with an obviously absurd story. But then he never could resist that sort of thing.
Agreeing not to profit commercially from any of the FIA championships was a small price to pay for the official right to be the sole regulator of international motor sport. The FIA had only ever charged a fee and expenses for putting an event on the calendar. Commercial exploitation had always been left to the event organiser. It was only Bernie’s systematic acquisition of the Formula One organisers’ rights that had changed any of the practices of the previous 80 years. Regulating international motor sport was the raison d’être of the FIA’s sporting division. Also, as a general principle, there is much to be said for keeping a regulatory body away from the commercial side of big-time sport. The sort of international committee you need for sporting rules is not necessarily the right body to take decisions involving the allocation of events and massive amounts of money.
While all this was going on we decided to open up a second front with Brussels, this time involving the international sporting community. Although motor sport was not part of the Olympic movement, the FIA always had excellent relations with the International Olympic Committee. It was the Italian Olympic Committee, for example, that organised the Rome symposium on dangerous sports in June 1997, at which Sir Maurice Drake spoke and which alerted the Italian authorities to the dangers of the inappropriate use of the criminal law in sport.
In October 1997 we informed the IOC about the growing problem with the EU Commission’s Competition Directorate and the dangers it presented for sport in general. The IOC president, Juan Antonio Samaranch, called a preliminary meeting on the question of sport in the EU and invited the FIA and three other major sports federations to Lausanne. We suggested we should form a united front and explain to the commission that sport should have a special status and was not just another commercial activity. What was needed was recognition of the special status of sport in the EU treaty, and there was now an opportunity to achieve this because a new treaty was being planned to deal with EU enlargement.
At the next meeting, Samaranch said he had discussed getting sport into the treaty with Helmut Kohl, the German chancellor, who had promised it would happen at the next EU summit. But David explained that a treaty change was not straightforward – it required an Intergovernmental Conference and unanimous agreement of the EU member states. Having Chancellor Kohl on board was not enough, because at least two, perhaps even three, countries (including the UK) were against any increase in EU competencies.
Samaranch was plainly displeased but at least the IOC now understood the realities of the situation. We invited him to a meeting we had arranged for the international sports federations in Downing Street with Tony Blair, Chris Smith, then Secretary of State for Culture, Media and Sport, and Jonathan Powell, Blair’s chief of staff, which proved a success and helped change the UK position on sport in the new treaty.
In October 1998, the European Commission launched a consultation on the ‘European Model of Sport’; and in February 1999 the FIA hosted a workshop in Brussels for the motor sport ACNs and ASNs to discuss and agree a draft memorandum on the FIA’s position. Following this, the FIA published its memorandum on ‘Sport and the EU’ as our contribution to the EU-wide consultation. The memorandum advocated recognition of sport in the EU treaty but always subject to unanimous voting. It also called on the commission to recognise the self-regulatory function of sports governing bodies as well as their global role. And it proposed a voluntary code of practice for sports governance. All this was, of course, directly relevant to our dispute with the commission’s DG Comp.
In December 2000, during the French EU presidency’s summit, the EU adopted the Nice Declaration on Sport. This recognised the self-governance of sport ‘on the basis of a democratic and transparent method of operation’, and also set out the solidarity principle that top-level sport should help encourage participation and the growth of grassroots sport. The declaration stated: ‘These social functions entail special responsibilities for federations and provide the basis for their competence in organising competitions.’ This was very much what we wanted and effectively overruled the commission.
In the summer of 2000, the FIA established a Governance in Sport working group which prepared a draft ‘Statement of Good Governance Principles for Sports Governing Bodies’. The following February, the FIA, the European Olympic Committee and Herbert Smith, the UK law firm that had represented the FIA in Brussels, jointly hosted ‘The Rules of the Game’, Europe’s first ever conference on the governance of sport. The conference was attended by more than 170 delegates and adopted the principles proposed by the working group. The main speakers were Mario Monti, the competition commissioner, Jacques Rogge and me together with Stephen Kinsella, who had been instrumental in setting up the conference and formulating the proposed rules. Jacques Rogge, who was elected IOC president later that year, subsequently told us that the feedback from the National Olympic Committees and international sports federations had been very positive. The conference report is still in use as a reference on sports governance.
The FIA occupied the middle ground between the National Olympic Committees and the football federations. We had good relations with FIFA, the Fédération Internationale de Football Association (its president, Sepp Blatter, was at
one time involved with Formula One as director of sports timing for Longines), and we shared its concerns about a regulatory role for the EU, but we also supported the IOC’s interest in EU sports programmes. The FIA helped develop a compromise and in June 2004 the EU agreed a revised text for a draft constitution that included the federations’ article on sport. The Lisbon Treaty, including that article, was agreed in 2009. As a result, sport was no longer menaced by suggestions that its governing bodies should be treated as if they were ordinary commercial entities.
I occasionally reflected on the idea that the FIA should propose a new division of the Olympic movement for mechanised sport, a third leg to take its place alongside the Summer and Winter Olympics. In that way, all the different modern powered sports could be represented in one great competition every four years. It was an intriguing idea and certainly very ambitious, but I never made the approach or mentioned it despite the many meetings I had with Samaranch or Jacques Rogge, his successor. Perhaps I should have but there always seemed to be too many other pressing issues.
33
THE NEWS OF THE WORLD
On a Sunday like any other in March 2008 a phone call from the FIA’s press chief, Richard Woods, informed me something entirely private I had done two days earlier was all over the News of the World. The newspaper is now closed but it had always been notorious for publishing any sort of salacious material it could get its hands on. I had no inkling that they were planning a story about me – there had been no phone call from them to seek a comment or any reason to suppose they were up to something. The first I heard was Richard’s phone call at around 10.30 that Sunday morning, when the paper was already in nearly three million homes.
It was not a paper I ever read so I went to the nearest newsagent and bought two copies – one for me, the other for the lawyers. It was the main story on the front page and inside there was more, plus photographs that seemed to have been taken from a video. It was not immediately clear how the video had been made, but it was evident that they were pictures of an S&M encounter I had had with five ladies two days earlier. It was entirely consensual, harmless and light-hearted, and ended with a cup of tea and, for some, a glass of wine. Importantly, it was something that everyone present had agreed beforehand would remain entirely confidential and a secret between the participants, whom I considered to be friends.
Having got hold of the paper, I had to show it to Jean. Her immediate reaction was that I’d had it printed specially by a joke shop – it’s the sort of thing I might well have done. She had no idea that once in a while I got up to that sort of thing. Until that morning it had been a very small part of my life; something I did occasionally when the mood took me.
Worse even than the photographs and standard tabloid text was the newspaper’s claim that what had taken place had involved ‘Nazi’ role-play. The outrageous headline, covering almost the entire front page, read: ‘F1 Boss Has Sick Nazi Orgy with 5 Hookers’. The Nazi accusation was an outright and deliberate lie. It had never crossed any of the participants’ minds that what we were doing had any Nazi connotations whatsoever. But I knew immediately that the News of the World’s Nazi characterisation would be used against me.
The only German element was that I spoke the language for some of the time to one of the ladies who is German. She was the sort of modern German citizen who would have been outraged had she been asked to enact some sort of Nazi scene, just as I would. We spoke German because another of the ladies liked to be given orders in a foreign language she didn’t understand. I know it sounds odd, but then S&M and much else to do with sex is indeed odd. What took place was just classic S&M, as the News of the World, of all papers, would have known perfectly well. Yet they were trying to pretend it was a scene from a Nazi concentration camp.
It emerged later that the newspaper’s journalists had invented the Nazi allegation in an attempt to give their story a public interest element. Without some sort of public interest justification, it would have been quite blatantly illegal to publish the story in the UK, and even more so the photographs that had been taken secretly in a private place without the consent of any of those involved.
As a general rule, sexual activity between consenting adults, even if not to everyone’s taste, is considered a private matter in the UK and in most civilised countries. Unless there is some genuine public interest in publishing (something more than it merely being of interest to some of the public), it is illegal to invade someone’s privacy by publishing pictures or a description of something done behind closed doors that everyone has agreed to keep confidential.
The newspaper’s editor, Colin Myler, knew he was on very thin ice legally, particularly in publishing the pictures. He had a problem because the pictures in no way supported any Nazi allegation. He had no public interest fig leaf. So he took enormous trouble to make sure I didn’t find out before the story was on the streets. He admitted later in court that he feared I would ask a judge to stop the story (by way of an injunction) because it was a clear invasion of privacy. He knew the request would in all probability have been granted.
Because of the danger of an injunction, the story was kept secret among a small group of editorial staff and, to reduce still further the chance that I would find out before it was published, the newspaper even went to the trouble and expense of producing a ‘spoof’ early edition with a completely different front-page story and no mention of what was to come in the main edition. They did this in case someone bought the first edition at around 10pm on the Saturday night and tipped me off. Then I would have been able to seek an urgent injunction from the duty judge. All these elaborate steps were taken on the basis that, once the story is on the streets, the victim will not sue. The reasons why people don’t sue, no matter how serious the invasion of privacy, became clear at my first meeting with the lawyers.
Given my antecedents, the newspaper’s front-page headline with the ‘Nazi’ story was, of course, particularly offensive and damaging. I was very surprised by this attack – it was plainly illegal and I could not see why the paper should want to break the law in order to damage me. I had never done any harm to its owner, Rupert Murdoch, or to those who worked for him, yet they had deliberately set out to damage me in a particularly malicious way. Possibly they hoped to sell a few newspapers, although I was not one of their usual celebrity targets. It seemed odd that they should pick on me when they were running a profitable business and surely did not want needlessly to stir up trouble. However, they were probably very confident I would not sue. That their actions might ultimately have wider consequences is unlikely to have crossed their minds.
Whatever their reasons, as far as I was concerned this was a declaration of war. Murdoch’s company had attacked me gratuitously and in a most vicious and dishonest way. I could never undo what they had done, or remove the story from the public mind, but I decided to respond by whatever lawful means were open to me. At the very least I hoped to make it more difficult for them to do the same thing to anyone else. I already knew they were in the habit of ‘exposing’ private sexual activity by people who lacked the resources to take them on, although I didn’t at that time know of the resulting suicides. But I resolved to try to put a stop to this sort of thing once and for all.
The immediate aftermath was very busy. Straightaway it was obvious that one of the participants had made the video using a hidden camera. Looking at the pictures, we later worked out which of them (later named Woman E) was responsible. But, for the moment, I didn’t know how it had reached the News of the World.
After the paper came out on the Sunday, my solicitor, Dominic Crossley, had immediately retained David Sherborne, the go-to barrister for privacy and defamation. Two days later we met in his chambers.
I quickly discovered some disturbing facts about bringing a claim for invasion of privacy. Because the paper had behaved illegally we would almost certainly win if we brought proceedings, but that was by no means the whole story. By suing, the entire case would be h
eard in open court. Everything private would be exposed all over again, with a full press gallery reporting every detail. The coverage becomes positively parasitical and newspapers like the Daily Mail would be there, slavering over the details. Worse still, this would happen when the original story had begun to fade from the public mind. No wonder victims were so easily discouraged from fighting back.
On top of this, there was the question of cost. I would be out of pocket whatever the result. Even if I won, damages in privacy cases were very low and would almost certainly not cover the difference between the costs awarded by the court and my solicitors’ bill. And if by any chance I lost, it could cost me £1 million because I would have to pay the costs of the News of the World’s lawyers as well as all my own.
But the most inimical and unjust deterrent of all was the discovery that the newspaper would almost certainly make something called a Part 36 offer, which has the effect of making the winner liable for all the costs if the damages do not exceed the offer. The newspaper’s legal team could offer a modest amount by way of settlement, but enough to exceed the likely damages. As a result, if I continued with the action and (as was likely) recovered less by way of damages than they had offered, I would pay all the costs even if I won my case.
I began to understand why the News of the World went to so much trouble to make sure I didn’t find out what they were doing and restrain them with an injunction. They knew they were breaking the law but could be confident I would be so inhibited by embarrassment and the costs that I would not sue them. No one sued for breach of privacy once the story was out on the streets. If you didn’t find out beforehand and obtain an injunction, the law would not help you – on the contrary, it would simply add to the damage you had suffered by allowing further publicity from proceedings in open court and charge you royally for doing so. It was as if you sued someone for breaking your leg, only to find the court’s remedy was to break the other leg and send you a large bill into the bargain.