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Mosley faces tough battle over sex claims

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  • Mosley unlikely to gain any financial benefit from taking legal action, say experts
  • Experts say claim for invasion of privacy most likely after sex scandal claims
  • Judgment against newspaper could have far-reaching implications
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By Glen Scanlon
For CNN
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LONDON, England (CNN) -- Legal experts say Max Mosley, the embattled FIA president, is unlikely to reap much financial gain from taking legal action against a UK newspaper that published revelations of his alleged role in a sado-masochistic orgy with five prostitutes.

Max Mosley, the FIA's president, is unlikely to gain much from taking legal action against the News of the World.

They believe Mosley will gain little from any legal action except more publicity. However, a judgment in his favor could have much wider implications for the media.

On Sunday, the tabloid News of the World ran an expose on Mosley alleging he took part in an orgy with Nazi overtones.

The 67-year-old Mosley rejected calls to step down, writing a letter to FIA officials saying he was embarrassed by what the newspaper reported but said there was no "Nazi connotation to the matter."

A video posted Sunday on the newspaper's Web site showed a man identified as Mosley arriving at an apartment and then engaging in various sex acts with several women, at least one in a prisoner's uniform, while also speaking German. The video can no longer be found on the Web site.

Mosley was due to attend this weekend's Bahrain Grand Prix but is remaining in London to deal with "legal matters," the FIA said.

Jeremy Clarke-Williams, joint head of defamation with law firm Russell Jones & Walker, said under UK law a publication that made the public think less of a person was defamatory.

Clarke-Williams said the News of the World's story did that, alleging Mosley was an adulterer, pervert and unable to shake off his father's Nazi legacy (Mosley is the son of British Union of Fascists party founder Oswald Mosley, who died in 1980).

He said the newspaper's first obvious defense was justification -- and that would require editors to produce evidence proving the allegations were true.

Secondly, but less likely, said Clarke Williams, the paper could argue that because Mosley is a high profile figure, this was a matter of public interest and so it had a duty to publish the allegations -- even if they prove to be untrue -- to its readership.

Clarke-Williams believed it was much more likely that Mosley would pursue the case as a violation of his privacy.

"It would be an interesting case because the test the Courts will apply is did he have a reasonable expectation of privacy and had there been an unjustified publication of private information? The events, which took place in his private flat in Chelsea, did not appear to affect anyone else."

He said Mosley's case had some resemblance to that of UK television and radio personality Jamie Theakston.

In 2002, Theakston sought an injunction against an article based on interviews with prostitutes.

The judge banned The People newspaper from printing photographs of Theakston taken inside the brothel but allowed it to run an article based on interviews with prostitutes.

Clarke-Williams said Theakston failed to stop publication of the interviews mainly because he had talked publicly about his love life prior to The People story and the activities took place in a Mayfair brothel, a posh inner London district, not a private place. However, the court eventually decided publication of the pictures was a step too far.

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He said the Court would balance the individual's right to privacy against the newspaper's right to freedom of expression.

Niri Shan, a partner specializing in media law with Taylor Wessing, said generally the courts appeared to consider pictorial coverage much more intrusive than a story.

Shan said it appeared Mosley was not planning to bring a claim for defamation but for invasion of privacy. If this was the case, it would not bring him much financial benefit.

He cited Naomi Campbell's privacy case against the UK's Daily Mirror newspaper, which saw her awarded $7,000 after the case went all the way to the Law Lords, the country's highest legal authority.

Campbell had objected to the publication of pictures of her leaving drug addiction treatment in early 2001.

Shan said he would be surprised if the Mosley matter ended up before a court.

"On the reputational management side of things it doesn't make sense. It's already in the public domain... it's like putting a genie back in the bottle."

Clarke-Williams agreed any damages award for privacy violation was to likely to be "fairly modest." The courts had been keeping damages in such cases low as it was a developing area of the law.

"I would only expect him to get a few thousand pounds if he succeeds."

He added that any court action could drag on for more than a year.

"The only reason he might litigate is to get a clear judgment in his favor because the compensation available would probably not justify it. My experience is that media defendants are nervous about privacy actions so in a difficult case like this, it might be that some accommodation is reached [between the parties] to avoid the uncertainty of a trial.

"Another factor is that the article looks like a sting operation. I wonder how much the News of the World will want about their tactics revealed in court?" E-mail to a friend E-mail to a friend

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