The News of the World has revealed that it deliberately did not contact Max Mosley before running its story about his S&M session. It even held the story over for the second edition so that its Sunday rivals would not get a sniff of it too early.
The reason why it did not contact him? The NoW thought Max would go for an injunction and the story was too important to “be injuncted”, as the NoW editor said.
That may well sink the NoW defence in the case of libel which Mosley is bringing. Part of the Reynolds defence is that the publication should contact the subject and include the gist of the subject’s story in their story. And it surely has to be a Reynolds defence because:
• it was not justified (not a Nazi S&M session);
• not fair comment (it was an allegation);
• not a review (what a fine cut of cloth in his German uniform); and
• the NoW clearly did not have consent.
Just to remind you of the tests for a Reynolds defence and how the NoW case might stack up against it:
• The seriousness of the allegations: serious charges which are untrue cause more harm; the Court has already in the privacy issue ruled that it is a serious allegation.
• Is it of public interest: No, said the High Court, it was private.
• Are the sources good ones? They took part in the S&M session.
• Has the publication tried reasonably to verify the information: Perhaps.
• Is the information of sufficient status? No, it’s private.
• Is there an urgency to publish? No.
• Did the publication get a comment from the subject. No, it deliberately did not.
• Did the article include the gist of the subject’s story? No.
• Is the tone quizzical rather than accusatory. Are you joking? It’s the NoW.
• There may be circumstances about the publication such as the timing. Err.
Not all of these tests have to be met: but only 3 out of 7 is not really enough.
Max could have told the NoW it was not a Nazi S&M fest at all, just a regular S&M fest. The NoW could then have run the story with his denial, as long as he did not go for an injunction.
Will the NoW fight the libel action? It is facing £900,000 legal fees for fighting the privacy case as well as the £60,000 in damages Max won.
And the judge who heard the privacy action, Mr Justice Eady, is the same one who hears libel cases.
The odds against the NoW are lengthening.