The Duchess of Sussex, Meghan Markle, is no stranger to the difficulties of life in the public eye. The media’s obsession with Meghan’s private life has already culminated in the Duchess suing the Daily Mail and Mail on Sunday for publishing the contents of a private letter she sent to her father, Thomas Markle: alleging that it amounted to misuse of private information, infringement of copyright and breach of the Data Protection Act 2018 (UK).

In late January 2020 photographs and video footage of Meghan walking her two dogs with her son, Archie, were published by UK tabloids. The Duke and Duchess’ response was immediately to issue warnings to international media not to purchase or publish the images on the basis that they were taken without the Duchess’ consent and allegedly involved harassment of the Duchess.

The photographs and footage

In the images and footage, Meghan is seen smiling in the direction of the camera. She looks happy and relaxed. She can be seen walking her dogs with her son Archie strapped to her chest in a lopsided baby carrier, and she is accompanied by two Royal Protection Officers with whom she chats along the way. They are strolling around Horth Hill Regional Park, a public park located in Vancouver, British Columbia. The photos were apparently taken by paparazzi with long range cameras who were hidden in the park bushes, unbeknownst to the Duchess and her security team.

What can Meghan do?

According to her lawyers, the Duchess was alarmed by the surreptitious taking of photos, showing her going about daily, private life, and their subsequent publication. To put it in context, Meghan was not at a public engagement, and the photos were taken only days after the Queen announced the details of an arrangement in which Harry and Meghan would step down as “senior members” of the royal family.1

Meghan’s rights differ between jurisdictions, including within the Commonwealth itself. This makes it likely (as is currently the case) that a number of online publications will continue to publish the material even though other publishers have removed or refrained from publishing it.

In an interview with The Times, media lawyer Mark Stephens of Howard Kennedy in London stated:

“You may be able to stop [the images] appearing in the UK, you may be able to stop them in France, but that does not stop the Australian or South African media running them if they want to, because the laws are different and they probably will be able to get away with it.”2

This paper examines the law in two different jurisdictions – British Columbia, Canada where the photos were taken and Australia where media outlets were recipients of requests not to publish them.

Canada – Invasion of privacy

In British Columbia, individuals have a right under the Privacy Act3 to sue for invasion of privacy. This law makes it a civil wrong for a person to wilfully violate the privacy of another person.4 It is not necessary to prove damage – in other words, Meghan would not have to show that the breach of privacy actually harmed her in some way. Rather, the fact that there was such an invasion is sufficient.

In determining whether there has been an invasion of privacy, the court must take into account multiple context-dependent, open-ended considerations, such as:

  • the nature and degree of privacy to which a person is entitled in a situation;
  • what is reasonable in the circumstances;
  • the nature, incidence and occasion of the act; and
  • the relationship between the parties.5

In this case, it would be relevant to consider Meghan’s status as an international public figure; the fact that she was in a public place during the day, and was engaged in an activity that commonly occurs in public – walking her dogs with her son; the apparently surreptitious circumstances in which the photos were taken; and that, presumably, the photographer took the images for commercial gain without any benefit to Meghan.

Factors that will displace a claim of invasion of privacy include where the person consents, the matter published is in the public interest, and where the matter published was fair comment.

Some media commentary accompanying the images imply that Meghan had consented to her photo being taken as they show the Duchess smiling directly into the camera and describe her as “beaming” and visibly enjoying herself.6 Although consent can be implied, it would not be reasonable for the photographer to assume that a coincidental smile towards a camera that is hidden at a distance meant that she consented to being photographed, assuming that is what occurred.

When Meghan’s sister-in-law, the Duchess of Cambridge, Kate Middleton, sued several paparazzi and Closer magazine for taking and publishing photos of her sunbathing topless whilst on holiday with her husband, Prince William, at a private chateau, the lawyer for Closer said in an interview, “It’s of public interest to know that future heirs to the throne have a solid relationship and are getting on well. It’s all part of the royal business”.7 On that basis, it might be said that it is a matter of public interest to know that Meghan and Archie are happy and enjoying their life in Vancouver. However, in Kate Middleton’s case, the French Tribunal de Grande Instance de Nanterre found against the magazine and awarded not only damages of €100,000 (AUD$162,000) but also imposed the maximum fine of €45,000 (AUD$73,000) on the magazine’s CEO and editor.

Where there is no harm or loss caused by the invasion of privacy, damages under the British Columbian Privacy Act would be unlikely to go above CAD$20,000 (AUD$22,000)8 – far less than what the photographer would have likely earned from selling the images.

Canada – Surveillance

Part VI of the Canadian Criminal Code9 regulates invasions of privacy. However, it is rather limited in that it only contains one offence – prohibiting the interception of private communications which, by definition, only includes oral communications. This means that video surveillance of a private communication that does not disclose the content of an oral communication is not prohibited.

What would be the legal position in Australia?

The position at common law

No Australian superior court has expressly recognised a tort of invasion of privacy. The closest the law has come is the obiter comments of the High Court minority in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd10 in which Gleeson CJ and Gummow and Hayne JJ observed that if an enforceable right to privacy were to exist, it would be for the benefit of natural persons, as opposed to corporations. There is therefore no authoritative precedent to rely on in support of an application to restrain the Australian media from publishing the images on invasion of privacy grounds.11

As in Canada, the tort of trespass would also be unavailable to Meghan as both she and the photographer were in a public space, specifically, a park. Had the photographer been on private property when taking the photos, they would have needed the owner’s consent to be there. In any event, long distance cameras often enable paparazzi to overcome any need to be located on private property.

Statutory rights

There is no statutory tort of invasion of privacy in Australia. However, many of the states and territories have general surveillance-related legislation,12 some of which contains general restrictions concerning the use of “optical surveillance devices” – including devices like cameras and mobile phones.

In the Northern Territory, Victoria, South Australia and Western Australia the relevant Surveillance Legislation prohibits the filming or photographing of “private activities” without consent, and the position is materially similar in Tasmania. However, an activity is not “private” if it is carried on in circumstances in which the parties to the activity reasonably ought to expect that the activity might be observed by someone else, particularly if the activity occurs in a public place. It would be difficult to argue that Meghan did not expect to be seen by other people during her walk in the park.

New South Wales is slightly different in that the Surveillance Devices Act 2007 focuses not so much on the nature of the activity, but whether the person recording the activity had consent to enter the premises where the recording took place. In other words, as long as the use of the optical surveillance device does not involve the unauthorised entry onto premises or unauthorised interference with a vehicle or other object, it is generally not an offence to record someone.13 Where the premise is a public space, like a government-owned park, there is unlikely to be unauthorised entry.

In addition to offences relating to the publication or communication of material taken in breach of the Surveillance Legislation,14 NSW and Tasmania also have possession offences, meaning that anybody who is in possession of recordings knowing that they were made in breach of the relevant Act, would also be guilty of an offence.15

The media balancing act

It is unlikely then that Meghan would succeed in any application to restrain the publication in Australia of the photos and video, or to sue for their dissemination in Australia by Australian media on the basis of any privacy or related rights. Other causes of action commonly invoked in similar situations, such as infringement of copyright or a claim in defamation are not relevant in this case.

This case study clearly illustrates the range of considerations that publishers must turn their mind to when deciding whether to publish material of this nature, when it is unclear whether the subject has provided consent. Other relevant considerations include compliance with regulatory codes (such as requirements under the Broadcasting Services Act 1992 (Cth) if the publisher is a broadcaster), the cost of defending potential claims, the nature of any broadcast and other reputational consequences if material is found to have been published without consent of the subject. It is important to note, however, that each case will turn on its facts and should be considered on a case-by-case basis.