The British press largely condemns the publication of topless photos of Kate Middleton post Leveson, and she has a strong legal case. But is that enough to protect privacy in the digital age?
Rarely do the royals take such a strong stand against the media. But the photographs of Kate Middleton – apparently taken with a long lens camera while the duke and duchess were sunbathing on a private estate in Provence – were seen as such an extreme breach of the pair’s privacy that the palace has come out fighting.
Clarence House issued an emotive, strongly-worded statement, comparing the breach of privacy to the media’s treatment of Princess Diana, who died under pursuit by paparazzi: “The incident is reminiscent of the worst excesses of the press and paparazzi during the life of Diana, Princess of Wales, and all the more upsetting to The Duke and Duchess for being so.”
“A red line has been crossed” in the publication of the photos in the French magazine, Closer, the palace added.
The UK version of Closer magazine was quick to distance itself from its French counterpart and said it would not be publishing the photos. And no UK newspaper opted to publish the photos, even The Sun, which was the only British newspaper to defy a Press Complaints Commission advisory note not to publish naked photos of Prince Harry at a hotel in Las Vegas, which the tabloid justified by arguing the pictures raised questions of security.
A source there told Channel 4 News: “I’d be stunned if we published the pictures and I imagine we will treat the story very straight down the line. Very different to Harry. Might be a pop at the French!”
What the Leveson inquiry did, was change the consciousness of the reading public. The British press know that to publish these photos would not go down well with their readership. Charlotte Harris, partner at Mishcon de Reya
The editor’s code of practice says it is “unacceptable to photograph individuals in private places without their consent” and adds that editors will be required to justify intrusions.
But this may not have been as stringently adhered to before Leveson, and there is no doubt that the spectre of inquiry looms over the British press. It may also have influenced the media’s perception that the public has no appetite for seeing the hugely popular Kate Middleton in such an uncompromising position.
“What has changed is that the people being questioned today are the publishers, rather than the published,” said Charlotte Harris, partner at Mishcon de Reya, who has represented claimants and appeared as a witness at the Leveson inquiry.
“What the Leveson inquiry did was change the consciousness of the reading public. The British press know that to publish these photos would not go down well with their readership.”
The fact that a French magazine, albeit one owned by the former Italian prime minister Silvio Berlusconi, published the pictures is surprising given that privacy has constitutional protection in France. The law is stricter than in the UK: the French civil code states that “everyone has the right to privacy” and the courts have generally been strict in enforcing that right.
When media are willing to break the law and face the consequences it simply does not matter how strong the legal protection is for citizens’ rights. Claire de Than, City University
However some organisations are willing to publish and pay the fine, Claire de Than, senior law lecturer at City University, told Channel 4 News. “A few years ago Closer was sued for invasion of privacy by Jenifer Bartoli, a well-known pop singer who featured on Star Academy.
“Once the photographs have been published then the harm has been done and it is much more difficult to obtain an injunction, so when media are willing to break the law and face the consequences it simply does not matter how strong the legal protection is for citizens’ rights.”
The publication of the pictures could also be found to be a violation of article eight of the European Convention on Human Rights – the right to respect for private life – as there was no overriding public interest in publishing them, Ms de Than added.
The fact that the British media decided not to publish the pictures has been celebrated by many privacy campaigners. But regardless of the changing attitudes of the press, as well as the outcry from the palace, Downing Street and those who sympathise with the well-liked duchess, anyone with a mild interest will be able to view the photos on the internet.
“Really we need some kind of international EU consensus on how the media are going to behave. Whether it’s guidelines or regulations, it doesn’t matter, but to have a situation where these photos can be published in one country but not elsewhere is no longer appropriate,” Ms Harris told Channel 4 News.
The publication of the photos will raise big questions about international privacy – and Franco-British relations – in the digital age.
“Even if the photos are never published in this country, it is the knowledge of the existence of these photos that is a breach of privacy,” adds Ms Harris. “People know how she behaves in private, which is a breach.”