Over the past two months there have been two news stories that have focussed attention on the private lives of members of the royal family in the United Kingdom. The publishing of photographs of Prince Harry naked and, more recently, the Duchess of Cambridge have proved controversial. The press frequently cite the fact that such press attention is a consequence of being in the public eye and something that royals, and celebrities, should have to tolerate. However the Courts do not share this attitude.
The photographs of Kate are particularly interesting from a legal perspective. These photographs were taken with a long lens whilst William and Kate were on holiday at a Chateau in Provence. The photographs were first published in the French magazine Closer but have now been published in the Irish Daily Star and the Italian sister publication to French Closer, Chi. The UK press has not published the photographs and The Sun announced that no responsible paper would “touch them with a bargepole.”
Reasonable expectation of privacy?
This story raises a number of issues about the nature of privacy law in the UK.
In the UK there is no law of privacy. Instead the Courts have created a privacy law out of the existing law on breach of confidence. This development is a consequence of the Human Rights Act 1998 which implemented the European Convention on Human Rights (ECHR) into UK law.
The ECHR contains two rights that are relevant in this context. Article 8 guarantees the respect for private and family life but Article 10 requires states to protect freedom of expression. Freedom of expression includes both freedom of the press and the right of members of the public to receive information but the Courts have recognised that freedom of expression cannot be absolute. Indeed Article 10 requires a state to restrict the exercise of the right to take into account the rights of others. This has forced Courts to engage in a balancing act.
These principles were set down in the European Court of Human Rights case of Von Hannover v. Germany. This case concerned photographs of Princess Caroline of Monaco. This case is particularly interesting as it concerned the privacy of a public figure. The photographs in question showed her engaging on sport and walking along a beach. The Court recognised that the Princess was a public figure but she was still entitled to a private life.
The UK Courts have adopted a similar approach. In Naomi Campbell’s case the House of Lords set down the test which is now cited in all privacy actions. The Court must determine "whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy". If this is answered in the affirmative then the aggrieved individual in entitled to the remedy sought.
The public interest
The public interest is one of the most important factors to be considered when balancing the competing rights. The opinion of Lady Hale in Jameel v Wall Street Journal explores the concept of public interest stating that it is "very different from saying that it is information which interests the public – the most vapid tittle-tattle about the activities of footballers' wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it."
The idea that there is some distinction between public interest and information that interests the public was also explored by the European Court of Human Rights in MGN v UK which concerned the Campbell decision. The Court recognised that the publication of photographs and articles which were intended to satisfy the curiosity of a particular readership regarding the details of a public figure’s private life, cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public.
The conclusion is that public figures are entitled to a private life. In some situations the public interest will tip the balance in favour of publication but in others, where the story could be classed as ‘tittle tattle’, there is little justification in the invasion of privacy.
Former FIA president Max Mosley’s case illustrates this point. Mr Mosley was photographed engaging in sexual activities. There was a suggestion that the activities may have been Nazi themed but this could not be proved. The Court here found that there was public interest in the Nazi element of the story but given that there was no proof that this was true the photographs should not have been published. There is a reasonable expectation of privacy in consensual sexual activities on private property however distasteful. By way of contrast Courts have found public interest to exist in the extra marital affair of Rio Ferdinand on the basis that he had frequently denied the allegations in the press.
What can be seen from this is that the Courts will consider each case on its own merits and decide if there is a legitimate public interest in the story.
In the case of Kate Middleton, our view is that there would seem to be little public interest, as defined by the courts, in the photographs. An attempt to publish in the UK would be blocked by the UK courts and entitle Kate to claim damages should the photographs be published.
The wide availability of the photographs on the internet
One final practical point to note is the effect of s12(4) of the Human Rights Act 1998 which provides that where a Court is considering granting a relief which may affect freedom of expression that Court should have regard to the extent that the material has already become known to the public. An attempt to get an injunction in the UK may be met with the defence that the photographs are now widely available in several countries and on the internet. This raises a more complex issue about protection of privacy over the internet. This issue has not yet been fully explored by the Courts but may feature heavily in the report by Lord Leveson into the ethics of the press.