24 August 2012

A Prince’s Privacy Part II - Privacy Denied


Amber Melville-Brown
Partner | US

Today, The Sun newspaper published intimate and private photographs of HRH Prince Harry, naked in a private hotel room. It is clear that he has a reasonable expectation of privacy to protect against any such publication, as our last blog set out. So why has The Sun done this?Former editor of The Sun Kelvin Mackenzie told Newsnight on the eve of the publication that it was ‘two fingers' to Lord Justice Leveson. As we all know from the yards of media coverage on the topic, Lord Justice Leveson is conducting an inquiry into press standards, resulting from the phone hacking scandal that saw the demise of the News of the World — sister paper to The Sun — after celebrities and civilians alike had their private telephones hacked into and their privacy invaded. There is little doubt that before the Leveson inquiry, the media would have hardly hesitated before publishing snaps of HRH in the buff. He's not a child anymore so the post Diana sympathy for her children has long dried up. They might have nodded towards the pics' privacy, but would have sought to argue that there was a public interest justification in their publication. Indeed, as The Sun does now. But the bloodhound and watchdog of society, as the media has been dubbed, took a bit of a beating in the inquiry and had seemingly been a little chastened. Hence its apparent reticence to publish when the rest of the world was doing just that. But taking your eye off a ‘feral best' for a moment or two can prove dangerous – and The Sun has bitten back, seemingly at Leveson, at the Press Complaints Commission and at the Royal family who had asked for the pictures not to be published. It has now exposed the Prince on our shores. As I commented in yesterday's blog, there is little if any public interest justification in publishing the photos themselves. Arguments of security and standards in the Royal family and the Army might – might _ — be feasible, but they would justify only the publication of the facts, not the images themselves. The more difficult question is whether the images were still private. In the Max Mosley case, Mr Justice Eady warned that the court should guard against playing King Canute. And here we had a tide of dissemination washing onto shores across the world, including our own. The sea defences of the PCC, a request from the Palace and respect for Article 8 rights stood up to a battering but have falled in Wapping – where _The Sun is based.  The Sun argues that the publication is in the public interest? But let's not kid ourselves – this is not about freedom of expression. There is nothing of significant public interst in the images of a bare bottom, nothing to express by way of an image, thereby unjustifiably invading privacy, that could not have been expressed in words alone. The British public was not deprived of the right to know, only of the right to see and be titillated by the images over its morning tea and toast. While a decision not to publish within this jurisdiction may have been considered a mere fig leaf, hardly able to spare the Prince any blushes at all, it meant at least that domestic newspapers were abiding by the domestic laws and regulations in force. And most still do. That we have standards that we are prepared to uphold for the protection of all in our society is surely something of which we should be proud, rather than clamouring to be allowed to behave as others do, whatever their standards. A great day for freedom of expression? I think not.

Amber Melville-Brown Partner | London

Category: Blog