A barely adequate defence

Let’s not kid ourselves, photos of a duchess sunbathing topless have nothing to do with free speech

Amber Melville-Brown

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.