13 June 2018
The newspapers are packed with stories about Prince Harry's crown jewels after photographs were surreptitiously snapped of him with his privates firmly on parade. The circumstances? He was enjoying a game of strip billiards with a number of lovely ladies in a hotel room while on holiday in Las Vegas. And apparently, Harry is not too good at billiards, because the photos show that he has forfeited all his clothes. But while the British papers are awash with the story, they are absent any of the photos while the images feature on Internet sites available across the world. Fleet Street has made its excuses and left the Prince's private parts to the imagination. But why? The Human Rights Act 1998 incorporated the European Convention on Human Rights into the law of England and Wales. Article 8 of the Convention guarantees a right to respect for one's private life, home and correspondence while Article 10 guarantees a right to freedom of expression. These rights are constantly warring for attention like two naughty children, frequently coming to blows when pitched against each other over newspaper publications of potentially private information. If a complaint is made, pre or post publication, the courts have to balance the two conflicting rights. Publisher, subject and court will each ask themselves whether there is a reasonable expectation of privacy in respect of what the publisher wants to publish and exposure of which the subject wishes to prevent. If that is the case, then there must be a justification for any publication, for example a public interest in publication to expose hypocrisy, criminality or wrongdoing. Here, the alarm bells should start to ring straight away that there is a reasonable expectation of privacy. We've got photographs of the Prince's naked body, that's one alarm bell ringing loudly; they were taken in a private hotel room, that's another one going off; they were taken presumably without Prince Harry's knowledge, another bell begins to ring; and would be published without his consent – indeed, St James's Palace sent letters to Fleet Street's editors urging them not to use the photos as to do so would be an unjustified invasion of privacy. The alarm bells are screaming out a clear indication that the hapless Harry has a reasonable expectation of privacy. So what of any public interest justification for the publication of this intimate information? In my view, there is none. There are suggestions that this behaviour could expose the Prince, third in line to the throne, to blackmail attempts or could undermine his security. But while that might constitute sufficient public interest justification to publish the story, it does not justify publication of the photographs. The courts – as well as lolly-pop loving Tele Sevalis – have said that a picture paints a thousand words. It is certainly the case the images add colour to an otherwise black and white story. But in doing so, they can be particularly intrusive to the subject. To publish these photographs would be an unjustified invasion of the Prince's privacy under the laws that pertain in our jurisdiction. That may present an anomaly; the rules covering what our newspapers can do and what others choose to do across the world have resulted in exposure across the globe but not on our shores. But does that mean that we should dumb down the laws that govern our newspapers to the lowest common denominator? I think not. The Internet may seem like the ungoverned Wild West but we have a Sherriff in town to ensure that privacy here, at least, can still be protected.