Amber Melville-Brown, partner, Withers

A barely adequate defence

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  • 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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  • 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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  • 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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  • 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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