Privacy Commission Day 2, Witness 1: Max Mosley

The PM Privacy Commission spoke to Max Mosley on Tuesday June 14, 2011. The commissioners are Sir Michael Lyons, Lord Faulks QC and Baroness Liddell.

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ML Well we start the second day of the PM Programme's commission on personal privacy and the relationship with the press with our third witness Mr Max Mosley. Thank you very much for coming along and joining us. Can I give you an opportunity to introduce yourself and say something about your interest in the issues that we're looking at.

MM Yes, my name is Max Mosley, I was until the end of 2009 president of the International Automobile Federation which among other things governs all forms of motor sport world wide but is also the federation of all the big motoring clubs. I retired from that in 2009. In 2008 I was the subject of an expose in the News of the World where they printed a whole lot of pictures of me engaged in sexual activity with 5 women, and the first I knew that they were going to do that was when someone rang me and said have you seen the News of the World, this was about 10 o'clock on Sunday morning. So of course I bought copies of the paper, and then immediately obviously having had discussions with my wife who knew nothing of any of this, I then called my lawyers and asked them to set about doing whatever they could do. They during the week that followed the newspaper contacted two of the women, in fact the chief reporter contacted two of them, and said that he wanted them to give him a story, that if they didn't he would publish their pictures un-pixelated in the newspaper the following Sunday, but if they did he would give them £8,000 each. They refused, but he never the less published a story the following day which included an interview with the fifth woman. The one who'd made the film at the request of the News of the World using a concealed camera, and it subsequently emerged that he'd written the story and then just got her to sign it paying her some money. We asked for an injunction to stop it and also to have this stuff removed from the web because in addition to publishing the newspaper I should have said they put it on the internet, including a bit of video and when we said we wanted this taken down they took it down. We applied for an injunction in front of Mr Justice Eady, he, as he said reluctantly refused the injunction on the grounds that this was now so widely spread over the internet there would be no purpose in giving it. He didn't want to be as he said, King Canute. So the News of the World promptly put it up again. And notwithstanding that Mr Justice Eady had made it perfectly clear that this material was in fact illegal. We were then granted an extradited trial, the trial took place at the beginning of July, it went on for four days. It effectively collapsed when the woman who had taken the film who was the News of the World star witness wouldn't give evidence and then eventually there was judgement in my favour, the damages awarded were £60,000 which I understand was a record, and still is for privacy action actually heard in court. The costs against the News of the World I got 82% of my costs of £420,000, so the £420,000 plus the £60,000 damages amounted to £480,000 which was only £30,000 short of the actual costs, so what happened to bring the case was that I lost £30,000 plus all the private material I'd wanted to keep secret was repeated again in open court and of course widely published. To be fair to the legal profession, the solicitors warned me right at the beginning, whatever happens you'll lose money, and whatever happens there will be more publicity and of course if you lose the costs will be in the order of a million pounds, and they also warned me that in all probability the newspaper would offer me a part 36 offer, meaning that they would offer me a sum of money and if I recovered less than that I would pay all the costs from 3 weeks after the offer was made, I decided that even if there were a part 36 offer I was going to court, and even if there was going to be publicity because I thought what had happened was so outrageous that it needed to be dealt with in court, and from that various other things would follow. In the event there was no part 36 offer, because they were absolutely certain I would not go through with it, and so the rest of it, well, is as I described, damages, costs and so on. Since then I went, I took, I applied to the European court of human rights for a ruling that notice should be given, the reason for that was that if you have notice you can at least go to a judge and ask him to give an injunction to stop publication, if you can satisfy him that you are more likely than not to win your case he will give the injunction in all probability. But of course if you do not have notice you cannot ask for an injunction, if you don't ask for an injunction effectively there's no remedy, because first of all you never make that which was private, private again, once it's been published it cannot be removed from the public mind, and secondly because of the way the courts work in this country it will actually cost you money and more publicity to sue, so that is not a remedy in any meaningful sense, so I thought the European Court of Justice ought to say to the English government, British government that there should be prior notification. Unfortunately they turned us down in the first instance, we sought leave to appeal to the grand chamber and we're awaiting the outcome of that request.

ML Thank you. Well it's a story I think that reflects your own courage, being willing to take this on. Could you, perhaps, share with us if you feel that story and the events that followed from it have done you significant personal damage, professionally and personally

MM Well, the thing is what happened when the story was published was that there were immediate calls for my resignation from the FIA the FIA is an organisation of 130 countries and some 250 motor sport organisations, so it's very international and my immediate reaction, was that because this was nothing whatever to do with my work and had no connection in any sense I didn't think it was a resigning matter so I thought the proper thing to do was to call a general assembly of the organisation and say to them do you want me to resign, and of course if they said yes they put me there, they're entitled to tell me to go, in fact they voted in favour something like two to one, so from that point of view it did not interfere with my work in the FIA. The people calling for my resignation were almost all, as within any political organisation one has enemies and it was they who were of course taking advantage to call for the resignation, happily they were in the minority so it didn't really affect my work at the FIA. It had an enormous effect on my family, evidently, and my eldest son had a pretty serious drug problem and then about a year after the expose he died from an overdose, now, I can't say the one thing caused the other but it certainly didn't help, he was trying to overcome his problem, he was coming towards 40 years old which is the sort of age people either do or they don't and he didn't and the thing is I don't, it certainly didn't help. What is very, very clear is that the newspapers, when they run one of these stories do so without any regard whatsoever of the possible effect of the family of the individual concerned.

ML The obvious question that that begs is whether you're clear in your own mind about how much you're responsible you're for in your actions and how much, it's the publicity and the exposure of your actions that were ...

MM Indeed, there is an argument for saying, well if you hadn't have done it then it wouldn't have happened, and of course that's absolutely true, but that begs the whole question about privacy because something's either private or it's not and if it is private then what you do is irrelevant because it shouldn't be published. So it's what I call it's what I call a tabloid argument, it's not a real argument and the real argument centres round in my view what should be private and what should not be private and I believe that the line should be drawn in the case of the private individual he should have an absolute right to privacy. In the case of what you might call a public individual or somebody who has a responsible job of some kind then you go over the border when the actions impinge in some way on the work that that person is doing, or his career or his position. If you do something in the headquarters of your company, well depending on what it is obviously, but potentially you're fair game. If you do something in a private flat somewhere which involves no one, or anything to do with the company then in my view you're not, but it's just a personal opinion.

ML And you would see yourself as one of those public people subject in the slightly, slightly stronger test.

MM Yes I think probably because public in the sense as soon as any of the public are interested in you, and in my case there were not many in this country, but quite a lot abroad, people wouldn't come up to me in the street in England, but they would in France or Germany, Italy, places like that, because of motor sport, but I think it would be undeniable that there was a public element in what I did and so that meant that if what I did impinged, connected in any way with my work then there begins to be an argument in, my view, for expose it would depend on all the circumstances of the case, but, when it's got nothing to do with the work it seems to me wholly private then therefore what you do or didn't do becomes irrelevant to the question

HL I'm very sorry to hear about the loss of your son. The trauma of that over and above what had happened must have been quite, quite dreadful. You suggest that the fifth woman had a camera which suggests entrapment. Why do you think a newspaper would be interested in that kind of entrapment in someone like you?

MM Well yes, it was entrapment in the sense that the News of the World hired the filming equipment, fitted it up on her and practiced with her before she went there. We know this because they left some of that on the tape which was then disclosed in the action. I think, again, this is just a personal view, the newspaper likes, the News of the World likes to publish what amounts to soft porn about real people, and so something of this kind, something unusual, something sexual, is meat and drink to them and all they need is an excuse to take pictures and to publish it and if they get that they will and I think that's almost their business model

HL I'm shocked at how much it cost. We discussed yesterday some of the issues around costs of getting injunctions but the very fact that you're talking of sums in the region of half a million to a million. You're a wealthy successful man, if you were a school teacher or a bricklayer you wouldn't have access to that kind of resource so does that mean that there is protection for the rich and no protection for the poor?

MM In a sense yes but first of all an injunction would probably cost less than 5% of a full trial, that's the first point. Second point is that there are no full trials. The reason that there are no full trials is partly the expense but primarily because there is no remedy, that is to say if you win you end up with a big bill and more publicity which in any meaningful sense is not a remedy. So you then get to a situation where the only people who could sue, where there are remedy, of there isn't, but where there are remedy would be people who are really quite wealthy or have got no money at all because a man of straw can sue. People who can't are the vast majority in between. And I've heard case after case of people who want to sue, but if they sue they have to put the house on the market. That is, to me, outrageous. I don't see how you could be said to be living under the rule of law if the majority of the population have no access to the law because of the cost. That seems to me self evident almost. But I think the only qualification to all of that is there is a scheme, as you undoubtedly know, called the CFA, conditional fee arrangement, where you can come to an arrangement with solicitors and council and then you get insurance against the costs, and it can be done. The problem is that there is now a move to reduce the so called uplift that the solicitors can recover under the conditional fee arrangement to a point where probably no solicitor will find it worth while. So the net result is that the law is not accessible. But in any event a privacy action is a no no even if you're the wealthiest man in the country because all you get is more bills and more publicity so it's only the injunctions which one needs to look at in that context because that is a meaningful remedy and it is true that without a conditional fee arrangement they are really only accessible to people who've got no money at all or are really quite wealthy.

HL It must have been quite a decision for you to take to pursue this action because if you hadn't pursued the action the story would have lasted a couple of days and then been forgotten about, now a couple of years later it's still being talked about. What really prompted you to go the distance with this action?

MM Well, I mean, anger. First of all the sensation of something like that is exactly like, it's never happened to me, but I can imagine coming home finding your front door open and all your furniture and goods stolen or hearing from the bank that your bank accounts been, now it's a manifestly illegal act that should never have happened and if somebody does that then you feel angry but that was compounded by them inventing that it was in some way a Nazi orgy which was so outrageous because first of all there was no hint of that and secondly it had never crossed anybody's mind. The reason that German was spoken, all very childish, which I can explain, but there was no hint of Nazis purely invented and invented because of my antecedence and I thought that was an act of manifest spite and also something that they were going to try and use to justify what they had done and that made me extremely angry. But then also there was this thought that by continuing as I do, the general public know about the whole thing or remember it which they would not otherwise do. But anyone who knew me or anyone who was interested in me would know it for ever if I didn't do something because you Google my name and there it is and I could move to some obscure village in the Andes and it would only take a few days for someone to Google my name and know the whole story, so in a funny sort of sense my immediate circle there was nothing to be lost or my immediate potential circle there was nothing to be lost, who actually, from the reactions I get in the street are very sympathetic.

EF You won your case as a result of considerable courage in taking it and you had a determination which despite this mention of Nazism and rather spurious attempts to try and justify this story, you persuaded the judge that this was a proper case for the violation of your privacy. But in a sense what I think you're saying is actually that's not much use, the real remedy in these situations is an injunction because the cat's out of the bag, and therefore you think that there ought to be some means to give you an opportunity, someone in your position the opportunity to prevent the press by prior notification so that an injunction can be taken out. Is that what you see as the real remedy in these situations?

MM Yes it is because there are two aspects to privacy one is clearly once it's made public you can't make it private again self evidently, so there can never be a real remedy and the only real argument that sometimes comes up is that people say well yes damages may not be a remedy but they're not in personal injury cases, but of course in a personal injury case if you knew the injury was about to happen you could go to a judge to ask for an injunction to stop it happening and there's no question you'd be given. The problem with personal injuries is that we do the best we can with all health and safety regulation, we can't prevent them, they will happen from time to time and there's nothing you can do except damages. Contrast that with the newspaper about to publish something quite clearly that could be, could be stopped if one knew about it. Now why that's so important is that if you take an absolute extreme case because that's always a good way to test things, imagine there's some perfectly respectable married couple but they're of enormous interest for some reason, and a newspaper films them in a hotel room making love the newspaper then publishes this and then puts it on the web these people have no remedy. If they sue they will have usual more publicity and a big bill, it's too late to get an injunction, it's already been published there it's in the newspaper, there it is. You might say that no newspaper is ever going to do that. That would be so outrageous. But when you look at what we already know, never mind about what we don't yet know publicly that is coming out about what the News of the World is prepared to do in order to get a story, I think it's quite optimistic to suggest that they wouldn't go, if not that far, quite a long way. Well to put people in a position where they have no remedy for something of that kind cannot be right. Somewhere like France if they did that it would be a criminal offence, and in fact I've made two proceedings against News of the World in France and as result of the chief reporter and the newspaper itself have been sent for trial in the French criminal courts in September, I don't suppose anybody will go to prison but never the less it's a sort of warning shot. They think it's quite outrageous I think because after all this is France, but they do publish in France and it's a bit like saying on the motorway to the Gendarmes we I didn't know you had a speed limit or something so I don't think they've got much of a defence, but anyway it is a criminal offence, but in this country there is actually nothing to be done. The only thing that would solve that problem would be prior notification because prior notification then my hypothetical couple could apply for an injunction and no doubt would get one. Without prior notification as I said there is no remedy.

EF I think you're legally qualified aren't you

MM I was at the bar, I was called in '64 and I practiced until '69 but I'm very out of date

EF Anyway, you're certainly up to date with this area. And what I'm wondering if you could help us with, accepting what you say the real remedy is prior restraint, how do you suggest that there should be some sort of regime whereby prior restraint was be built into any editor's or journalist's approach to a story which might impinge on somebody's privacy

MM Well, I think, there is a case for restricting it to sexual matters, there is a case for doing that and in the application for leave to appeal would have done precisely that because the real mischief here is usually sex, if it's some commercial or semi commercial matter it's less dramatic for the individual. I believe that there should be a legal requirement on the newspaper editor to ensure that the subject of his story is notified if a reasonable person would think that that which is about to be revealed would be private and that the subject would not wish it to be revealed. I think that that would cover virtually every case. And obviously if one were framing legislation one would consider very carefully the precise wording but the essence of it would be if they are going to print a story about a sexual matter that's done in private etc with a consenting adult and all those sort of subjects then they should tell the person about whom they're writing and probably give them 48 hours notice.

EF And if they don't....

MM Well, if they don't I would say they should be either subjected to an unlimited fine which would be I would suggest a percentage of turnover rather like the European Commission with competition law, so that it would be far more serious, for example, Newsgroup newspapers than it would for the local paper, or possibly criminal sanctions, but I think the absolutely essential element is that it should be a deterrent and it could be a financial deterrent but I do not believe that exemplary damages would ever fulfil that role because to have any effect on News International for example the sum of money would have to be so great that it would be quite absurd to give that to an individual it should go to the public purse. But the fine, there's no reason why there shouldn't be an enormous fine and that would deter them, there's no question.

EF Now on that hypothesis somebody is going to be sitting round a lawyer no doubt advising the editor or the journalist whether or not this is possibly a case where there ought to be prior notification and they're going to get it wrong sometimes because privacy is quite difficult to define, particularly when questions of public interest are rather delicate and not easy to advise on, are those sort of matters which you think would be, if there was a difficult case and perhaps it was the wrong side of the line would be relevant to the fine, whereas if there's a flagrant breach the fine ought to be larger

MM Well I think first of all the lawyer would probably say this is a difficult case perhaps it would be better to notify. Then the editor would say well if we do that he'll ask for an injunction and the lawyer would say, ah, but there's public interest he won't get it. So I think the real danger that suppressing something that is in the public interest in any sense to publish, the danger of that is much smaller than the newspapers like us to think because the truth of the matter is that the judge will only give the injunction will only give the injunction under section 12 3 if you're more likely than not to win the case. So whenever there's a public interest element it gets very difficult to get an injunction so I think what would happen then, sorry I'm repeating myself slightly, what would happen is the lawyer would say is it's slightly doubtful give him notice and I think it most unlikely you would ever get a case where the lawyer would say don't give him notice and then it turned out to be the wrong thing to do. If that happened it would still be a matter for the judge in front of whom this came to charge less than say, 10% turnover, in those particular circumstances.

EF Yes, the law of privacy is at the moment is being developed by judges and you've seen a number of judgments, I think, why the judges interpret the rights under the convention in the human rights act. Do you think the law is reasonably clear, from what you've read at least, and do you think it's satisfactory or do you think that parliament ought to be trying to clarify this for the purposes of the judges and so that the public know that parliament has been involved in the whole issue?

MM I think, on the whole it's satisfactory, it's in my opinion weighted rather in favour of the press, because when one looks at the freedom of information section, section 12 in the act, there's protection for the press, there is no protection for the individual, for example, you're bound to notify the press unless you've got very significant reasons for not doing so, there's no corresponding need to notify the individual. So the law is slightly weighted towards the press because they lobbied for that at the time, undoubtedly. But that said, I think the judges are doing a good job. The difficulty comes when you have a case when the balance between article 8 and article 10 is very fine. But then that inevitably has to be a matter for the judge because they have to look at all the circumstances of the case, or as they describe it apply an intense focus and it's impossible I would have thought for parliament to foresee all the circumstances and why that would make that task for the judges any easier because in the end one has to take subjective judgement in a particular case, and unless you go to the extreme that the tabloids would like, and you can publish anything, or can only, you're given far more scope to invade privacy I don't see much could be done, and if that were to happen, if the right to invade privacy were to be given in some way, that would bring us into conflict with convention and somebody would apply to court in Strasbourg and say this legislation shouldn't continue.

EF Your argument in favour of prior notification which you took to the European Court of Human Rights was rejected. Can you tell us why?

MM Well, the reason they gave was that it fell within the margin of appreciation of the country, which of course is a get out. But the judgement itself was very interesting because it actually is quite seriously, quite difficult for some of the tabloids in that they spelt out that article 10 protection, free speech protection, does not extend to the exposure of tawdry details about peoples lives, so that's something that will come back and bite the tabloids, undoubtedly. But then at the end they suddenly give this margin of appreciation. I think the truth of the matter is, I may be wrong but speculation, I believe that all the arguments in that judgement go completely in our favour. We won the argument unquestionably. But I think there was an element there of if we find in favour of this complainant there will be a media firestorm in the UK, anti EU, anti Europe, because in this country Strasbourg, Brussels, it's all completely muddled up. They don't know the difference between the European Commission, the European Council and so on. There would have been an anti Europe firestorm which would do enormous damage and I think that in the same way that a lot of people anti EU say yes I don't like EU but it's better than carrying the bodies out of the cellars, at the same time you get people saying well, well sorry for Mosley he's actually quite right about that but don't let's provoke some huge row in the UK that's going to do enormous damage to international relations, let's find against him. I could be completely wrong but that's the feeling I have from reading the judgement and thinking about the arguments.

ML Can you just take us back to those events in 2008 and ask whether, what your experience was of the PCC and indeed of the police, given that we were talking of illegal actions at that time.

MM Well, the PCC, when we approached them, they said is there litigation and we said yes and they said we can't deal with it. So in fact, first of all they wouldn't deal with it anyway, but even if they had, after the publication they have no power. Of course, where the PCC, so they claim, and it may well be true, do some good is in preventing things being published that shouldn't be published. But of course there once again without prior notification you can't go to them and ask them to do that so it is yet another argument for prior notification. If the PCC has a function at all with its' present powers it is only to restrain publication and prevent publication because post publication what they do has no effective at all because it's a slap on the wrist, it's nothing. They pretend that editors are terrified of them, but that's obviously not true, I mean for example in my case there's breach after breach after breach of their code, it would be quite tiresome to list them all, so, in that sense the PCC were no use to us at all. The police, we thought carefully about reporting to the police the blackmailing of two of the women because I took council of opinion at the criminal bar and they said that was quite clearly blackmail but it was evident from all sorts of things that I knew that the connections between News Group newspapers and police was such that there might be no purpose in doing that. However when the new enquiry started under Sue Acres we have now made a formal complaint to the police about blackmail and we understand that is being perused in the sense that they're talking to the crown prosecution service about it.

ML Are you even more confident in the........

MM Having started off being a bit sceptical, everything points to the current police enquiry being proper and serious and I have met two of the people involved, myself about my case and I formed a very, very good impression.

ML Can I also take this into the area of new media and ask whether you distinguish between the main newspapers and that great body of what we might call citizen journalists commenting on matters through Twitter etc

MM Well, obviously indeed, there is a distinction because the fundamental distinction is that anyone can write on Twitter who feels like it and the legal sanctions against them are in their infancy and quite difficult, whereas in the newspaper you can only write in the newspaper if the editor lets you, on top of which we all know where the newspaper is if you want to sue. So there is a huge distinction, but of course with that goes a much lower damage in the sense that if anybody who wanted to could write in the Daily Telegraph you wouldn't take it seriously and it's the same with Twitter, it's really pub gossip, it's just pub gossip in a very big pub, but it's not nearly so damaging. Of course any restraints are in their infancy. This also applies to Google, for example, in my case Google carry images which were found to be illegal at the trial, now, I've been attempting to get these off various websites all over the world, in Germany alone we've well over 100 sites that we've removed the stuff from. But of course it spreads everywhere and I've said to Google you should stop these images appearing when someone puts my name in into your search engine. They said we're not publishing these, I said if it comes off a Google page and you can actually see the picture you're publishing it. They say we haven't got the technology to stop this happening we'll take it down the minute you draw our attention to it. I say you've only got to take a look at a site like TinEye and you put an image in there and it will find all the images on the net, that technology is trivial to people like you, yes but we don't want to police the net, we're not going to police the net so at that point I said well ok we'll see and I've now started proceedings against them in Germany and France, partly because it's simply less expensive there and also the law probably is slightly more favourable than here. And then when I took council's opinion here it was quite clear there was breach of privacy and breach of the order and so on but he said it would be very difficult to enforce. Now my feeling is that that's not entirely accurate because they've got assets in this country, there's a subsidiary here, they've got a 1000 employees, they've also got a lot of employees in Ireland, so I think if we sued and sued successfully we could apply enough pressure, if we were to win in France and the ruling would be they have to pay X thousand a day until they stop doing whatever it is so that would get their attention but of course like all litigation, it takes forever and we've been negotiating with them because I was saying to them look be reasonable just take it down and then I'll leave you alone but if you won't I'm not going to. So apart from the actions in France and Germany we're also in discussions with the European Commission because there's a strong feeling there that the attitude of Google, which is, if you're all over the net what you do is change your name, is not really acceptable and that people's privacy should be respected and so I think eventually there may be an EU directive which would solve the problem, but it is, as I said in its infancy all of that

ML As continuing work that you're doing, Max, it's become a very big part of your life. Is it still motivated by that original anger or...

MM That kicked it off but it's motivated now, it', an awful thing to admit that there's an element of do-gooding in this, at the FIA we had obviously motor sport to run and you did your best to make sure that the drivers didn't get killed too often, if at all, and we were quite successful in that, but having been successful in that we moved into road traffic and it was appalling the level and I think we made a big difference in the EU. The whole of that Euro encamp, crash testing and publishing the results was done in the teeth of furious opposition from the car industry in the beginning now they've adopted it and follow it. But all of that was not necessary but it seemed to me somebody put you in a position where you can do that, you should. And that really the FIA being not just Formula One and the things people see but this huge mass of big motoring clubs all over the world it gave one an entry to government and all sorts of things in all sorts of different countries, to the EU Commission to America to the World Bank, so a great deal work took place, it wasn't just me, I had a whole team of people, very good people dealing with this. I think it's, you know, in life sometimes you're put in a position where you can actually do something. Particularly if other people are not in a position to do that then you should and I find myself now no longer doing the FIA and so on and with the time to do this and fortunately the resources and so I just think it's something that needs doing and that's really the motive now. I'm still angry with the News of the World but there's no sense of vengeance there and there's no sort of vendetta against Murdoch, I just feel that it's not his fault, he's doing the best he can like any monopolist, it's society that should stop him, it's not up to him to stop, he won't but society could stop him and should stop him

ML Before we do a list of conclusions can I ask you what you would say directly to the listeners of the PM Programme about whether you're, whether the current system works and if not what needs to be changed

MM I think the difficulty with the law as it is at the present is that firstly for a breach of privacy there is no remedy, the reason for that is that if you sue and you win the damages you get plus the costs you're awarded against the other side is less than the bill you'd get from your solicitors. So there's not much point in suing. And at the moment we have no requirement for newspapers to tell you if they're going to publish something private. In my view they should have to tell you if they're going to publish something private because once they've published it no power on earth can make it private again, it's public forever more. So even if there were proper a legal system where you could get damages and costs which exceeded your costs, still the thing would be public, you would have no solution, no remedy and that can't be right in my view.

ML Thank you very much

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