Amber Melville-Brown, partner, Withers
A barely adequate defence
Let’s not kid ourselves, photos of a duchess sunbathing topless have nothing to do with free speech
Last Tuesday the Duchess of Cambridge won an injunction to prevent future publication of photographs of her in bikini bottoms on the private terrace of Lord Linley’s villa in Provence. The publisher of Closer magazine is also required to deliver up the original images and will face a fine of €10,000 (£8,000) for any future publication.
The French court’s decision was both right and unsurprising, but it cannot undo the upset caused; the photographs have been published and the duchess cannot reclaim the privacy to which she was entitled.
The courts have compared private information to an ice cube; and an ice cube will certainly melt under the heat of a media spotlight, making the pre-publication injunction a far more valuable remedy than damages after the event. While the duchess hardly needs an additional few euros, no amount of damages can satisfy anyone whose privacy has been invaded. But a pre-publication injunction is only available to those who know about a possible invasion in advance.
While editor of the Daily Mail, Paul Dacre, says that 99 times out of 100 subjects are put on notice of stories that might invade privacy, the duchess and Max Mosley, former president of the FIA, may beg to differ. Without notice, Mosley was unable to prevent the News of the World printing surreptitiously obtained photographs and video footage of him engaging in sadomasochistic sexual activity.
The damage was done when the story hit the newsstands and the internet, and damages of £60,000 obtained through the courts after the event did little to compensate.
It would take little to level the playing field between predator and prey. If the press were required to notify subjects in advance of their exposés the subject would at least have a sporting chance.
Rather than allowing editors to decide, unilaterally - with the glittering prize of increased sales before their eyes - whether the publication would constitute an unjustifiable invasion of privacy, that would be a matter for the court at a preliminary hearing. If the court found for the claimant it would be right to restrain publication; on the other hand, if it found for the defendant the press would be free to publish with impunity.
Mosley argued this before the European Court of Human Rights, but the court - reluctant to introduce a measure that risked being incompatible with the right to freedom of expression - ruled that pre-publication notification was not needed in the UK to ensure domestic law was compliant. So, a loss for Mosley but a win for the press.
Without Strasbourg breathing down her neck, Closer’s editor was under no obligation to notify the duchess of what she had, leaving Kate no chance to cover up. The British media has shown restraint in respect of these photos, aware that publication would be unlawful, likely to irritate their Kate-loving readers and provocative in the run-up to the Leveson report.
Make no mistake: the images of a topless duchess - and her royal naked brother-in-law weeks before - have nothing to do with free speech. We are astute enough to know this and should not allow ‘public interest’ banner-wavers to drown out the quiet voice inside that tells us so.
Readers' comments (4)
Anonymous | 24-Sep-2012 7:54 am
Check this out, this attorney makes this argument for why the Prince William/Kate Middleton privacy argument would not hold-up in America. And I have never really understood their argument, either. They say that the photographer who photographed Kate Middleton topless should not have taken those photos because she did not know the photos were being taken, nor did she consent to the photos to be taken, and she was on private property. But if I walk out into my front yard naked and somebody takes a photograph of me from the public sidewalk and I am not aware of it, would the U.S. courts really consider that an invasion of my privacy? I am on my own private property and I am not aware that the photograph is being taken...but I am outside. No, U.S. courts would not consider that an invasion of my privacy. Newscasts film peoples' homes and people outside their homes who are still in their yards, all the time. Are those newscasts violating those peoples' privacy because they are filming those people outside their homes but still in their yards? It really comes down to this question: If you are outside, do you really have a valid expectation of privacy, even if you are on private property? Can anywhere outdoors really validly be considered a private place? If a husband and wife were having sex out in their front yard where all the neighbors could see them and somebody called the police on them, the police would arrest them even though they are on their private property. My point is this: Kate Middleton was outdoors when she took her top off. Now, did she consent to being photographed with her top off? Yes, she did. She consented to being photographed by going outdoors. When you go outdoors, that is an automatic consent to whomever may see you to see you and whomever may photograph you to photograph you. Simply because you do not know you are being photographed is no excuse and no defense. If Kate Middleton did not want to be photographed with her top off, she should have stayed indoors. Anyway, here is that attorney's argument that really questions Prince William's and Kate Middleton's privacy claim. (link below):
http://www.norwichbulletin.com/Opinion/x551367252/Richard-Meehan-Expectations-of-privacy-reside-with-the-person-not-the-location#axzz27GP83A6E
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Anonymous | 24-Sep-2012 2:20 pm
I was interested to read the above commenter's contribution - but could such an interpretation too narrowly constrain the concept of 'reasonable expectation of privacy' used in similar cases hitherto? I think that a test of 'being outside' has the risk of being much too general and far-reaching....
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John H | 24-Sep-2012 3:05 pm
Given where the photographer was relative to the chateau, I don't think HRH could be said to have "consented" to being photographed by having the temerity to be outside:
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Will D | 25-Sep-2012 1:38 pm
I am always entertained by the number of contributors to online debates on privacy who assert that any public behaviour is automatically exempt from the protection of privacy - while maintaining their own anonymity.
As to the point of the article, it really is difficult to see what objection the press can legitimately have to prior notification. The Court would probably, in a majority of cases, find that the public interest test was satisfied - certainly the press ought to expect so. In those circumstances they will be able to publish not only the original story, but also presumably the fact that the notified party tried (and failed) to have the story suppressed through the Courts.
Purely from a commercial perspective, I cannot think that this would be anything other than a benefit to the sales of the story in question.
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