14.
Mr Mosley has chosen to respond to the widespread publicity in various ways,
including in one statement containing the following:
“Given the history of BMW and Mercedes-Benz, particularly
before and during the Second World War, I fully understand
why they would wish to strongly distance themselves from
what they rightly describe as the disgraceful content of these
publications.
Unfortunately they did not contact me before putting out their
statement to ask whether the content was in fact true.”
15.
It is thus clear that Mr Mosley’s complaint has at least two distinct elements. First, he
objects to the visual portrayal of the edited footage showing his sexual activities.
Secondly, he says that the episode had nothing to do with Nazism. The suggestion
was made in the newspaper that he was playing “Nazi sex games”; that he was
playing a concentration camp commandant; and that the women wore “uniforms
reminiscent of Auschwitz guards”. All this has an extra resonance because Mr
Mosley is the son of Sir Oswald Mosley. This is linked to allegations by the
newspaper of hypocrisy (“In public he rejects his father’s evil past, but secretly he
plays Nazi sex games”).
16.
The allegation of hypocrisy is obviously defamatory. It is also strongly arguable that
to say, of anyone, that he or she is taking part in Nazi games or role-play, involving
re-enactment of scenes from concentration camps, or insulting the memory of victims,
will reflect adversely upon that person’s reputation. It is important to emphasise,
therefore, that the application before me was based solely on infringement of privacy
and not on the tort of defamation.
17.
In the light of the well-known principle associated with Bonnard v. Perryman [1891]
2 Ch 269, recently endorsed after the enactment of the Human Rights Act 1998 by the
Court of Appeal in Greene v. Associated Newspapers [2005] 1 All ER 30, it would
not be possible to restrain publication of the allegations linking the “orgy” to Nazism.
That is because the Respondent wishes to maintain that it is a true reflection of what
the video recording, as a whole, actually portrays. This is challenged as “absurd” by
Mr Price and, if the edited footage is the best evidence in support of this contention, it
certainly appears very weak. Obviously, however, I cannot come to a conclusion on
that at this stage. It remains a matter of dispute between the parties.
18.
Mr Mosley, it appears, speaks German very well. He claims that he was only
speaking German on this occasion because one of the participants was herself from
Germany. Mr Millar does not accept this and suggested that there is a section of the
recording in which “cod German” is used in a way that is reminiscent of the bogus
German accents used in the television series “’Allo ’Allo”. Also, although one of the
women is wearing for part of the time a German uniform jacket, it is said to be a
modern German Air Force jacket (nothing to do with the Nazi era).
19.
It is also accepted that some of the women wear suits with broad horizontal stripes,
but these are said to be quite unlike anything in the concentration camps. They are
readily available in joke shops as representing United States prison uniforms.