Why is The Duchess of Cambridge shutting the stable door now?

By Guest Contributor
September 18, 2012

–By Oliver Smith, Media Lawyer at Keystone Law. The opinions expressed are his own.–

Whilst suing magazines after publication may look like shutting the stable door after the horse has bolted, in seeking an injunction against Closer, The Duchess of Cambridge may be taking the view that she wants to make the publication process as expensive as possible in terms of legal costs and damages in order to deprive the magazines of their profit incentive in the future. However this is unlikely to work in countries where the profits can vastly exceed any damages, such as France.

The photographs of The Duchess of Cambridge topless on holiday in France published by French magazine Closer were taken from a public road using a very long lens.  The Duchess is now seeking an injunction against Closer to prevent further publication in France (and to have unsold copies taken off the shelves), damages and a criminal prosecution of the photographer who took the pictures. The photographs have since been published in the Republic of Ireland by the Irish Daily Star and in Italian magazine Chi.

No UK publication has yet announced its intention to publish the photographs.  The Duchess could however still seek an injunction in the UK to prevent publication and serve it on all the major UK newspapers and magazines. There is no “privacy law” in the UK as such but the courts have developed the law of confidence to comply with the need to incorporate into UK law a right to family and private life under the Human Rights Act 1998.

In 2004 the House of Lords (the task would now fall to The Supreme Court) found that Mirror Group Newspapers had “misused private information” in publishing photographs of model Naomi Campbell leaving a Narcotics Anonymous meeting. The key test in that case was whether the person had a reasonable expectation of privacy.  In the current case of The Duchess of Cambridge, it appears clear that she would have had a reasonable expectation of privacy given that she was on private property and not visible to the naked eye.

Once a reasonable expectation of privacy is established, the court has to balance the Article 8 human right to a private and family life against the Article 10 right to free expression. Some cases in the ECHR have suggested that for public figures something less than a “public interest” can justify publication where the photograph contributes to a debate of general interest.

A photograph of Princess Caroline on holiday when her father was ill was considered acceptable by the ECHR as it was a relevant illustration to the story but pictures of her shopping in public with no other story were a breach of her privacy. It is difficult to see what public interest there is in the publication of topless pictures of The Duchess; a public interest would usually involve exposure of illegality or a public figure involved in immoral behaviour or hypocrisy.

UK courts can award “exemplary damages” to deprive a publication of its profits so the UK is a less attractive place to flout privacy laws.

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