The role model argument is hopeless. A famous sportsman is undoubtedly a role model when practising his sport. You would not want a famous footballer to foul consistently lest other, lesser footballers followed his example. But he’s not a role model in his sex life. Sex is not the reason for his fame nor the reason he’s admired. It’s irrelevant to his “role” which is playing football.
But it gets worse. If someone famous is greatly admired, others may be inclined to copy him. So if our famous sportsman is doing something he shouldn’t, the last thing you want to do is expose this lest those who admire him follow his example. Far from it being in the public interest to expose a role model’s private misbehaviour, it may actually be in the public interest to conceal it.
Hypocrisy, or misleading the public, is slightly more complex. However it is not enough to say that if someone misleads the public he should ipso facto be exposed. The public is misled all the time. It ranges from the harmless (a magician for example), through the potentially harmful, (public relations, “spin”, salesmanship) to the downright criminal (the con man).
The rational approach is to ask if the public has been misled to its detriment. If a famous sportsman is selling something to the public on the basis of a false image he may be obtaining money wrongfully and perhaps should be exposed. But if he represents himself as a family man when in fact he’s a serial adulterer, it does not necessarily follow that he’s taking advantage of the public.
It seems unlikely that football fans would no longer pay to watch a player or buy replicas of his shirt if they knew he had cheated on his wife. Likewise, a captain of a football team would not necessarily command less respect among his teammates if they knew he had not been faithful to his partner. So before allowing his adultery to be exposed, a rational court would want evidence that members of the public had been misled to their detriment, or at least that he was less able to fulfill his public role as a result of his conduct.
The hypocrisy argument is not always flawed. If a person relies on a false image to obtain something from the public, for example an adulterous politician seeking votes based on family values, they should be exposed. But in the vast majority of sex cases involving footballers and celebrities, this does not apply.
It is often forgotten (and always forgotten by the tabloids) that invasion of privacy is very serious. It can be a matter of life or death. On more than one occasion it has led to suicide. It can cause great distress to the individual and even more to his (innocent) family. It is as bad, if not worse, than the sanctions available to the criminal courts.
The right to privacy should not be swept aside for the mere amusement of the tabloid reader. To impose what can be a terrible penalty on an individual or his family can be justified if it is necessary in order to serve some real and serious public need but not for trivial reasons supported by flawed and self-serving arguments.
If only one side of a debate is heard, there is always a danger that opinion will move too much in one direction. In the debate about privacy, the voice of the media is overwhelmingly more powerful than a few individuals and lawyers on the other side. The tabloids, with no little help from the broadsheets, have introduced two flawed arguments. It is worrying that there are signs these arguments may be finding favour with the courts.
Max Mosley is a former President of the FIA and outspoken voice on privacy issues.