Well, against a cacophonous backdrop of hysterical commentary, The Sun has bitten the bullet and published on today’s front page those notorious photos of Prince Harry on the Vegas Strip. The Sun says that they have published in the public interest and as a test of Britain’s free press.
Many commentators and rivals have condemned the move as cynically putting up two fingers to both the law and the PCC Editors’ Code while others have lauded The Sun’s guts in challenging the hubris of the establishment when anyone with access to the internet can see exactly what they are not supposed to.
However, very little of this commentary actually goes back to basics and examines the ethical and legal position here.
Clause 3 of the PCC Code repeats the familiar words that everyone is entitled to respect for his or her private life and requires editors to justify intrusions into an individual’s private life without consent. The Code does not ban intrusion – it requires intrusion to be justified.
Has The Sun intruded on Prince Harry’s private life? Taking the position that it has – and although Prince Harry himself appears to have said nothing about the matter he has clearly not given his consent – has the editor of the Sun provided a justification for doing so? The Sun’s arguments are that the pictures raise issues of legitimate and significant public interest – and that the PCC has already ruled that its Code ‘required the Commission to have regard to the extent to which the material is already in the public domain’.
Clause 3 also states that it is ‘unacceptable to photograph individuals in private places without their consent’, defining private places as ‘public or private property where there is a reasonable expectation of privacy’. There are several questions to raise here. Firstly, this part of the Code was developed with regard to ‘paparazzi’ shots taken by or for newspapers often with ‘long lenses’ and in a climate of harassment of the subject. Are we dealing with such a situation here? Secondly, did the PCC deliberately choose the words to distinguish the act of photography from the act of publishing a photograph taken by another – in this case a participant in the party? And thirdly, although a hotel room would naturally be considered a private place, does one have a reasonable expectation of privacy when one invites a group of random strangers one has just met back to that hotel room and proceeds to take all of one’s clothes of in front of them all?
And of course clause 3 of the Editors’ Code is subject to the public interest, which the PCC describes as extending to ‘freedom of expression itself’.
There are two threads to the law here, clearly recognised since the House of Lords ruled Campbell v Mirror Group Newspapers in 2004. Firstly, there is the ‘old-fashioned’ breach of confidence – relevant where there is a pre-existing relationship between the parties; so clearly not relevant to a spontaneous party between random strangers. Secondly, there is misuse of private information. To succeed in a claim based on misuse of information it must be shown that the claimant had a legitimate expectation of privacy, subject to the possibility of that expectation being trumped by an overriding public interest.
Did Prince Harry enjoy a legitimate expectation of privacy with regard to what took place at the party and does he continue to enjoy a legitimate expectation of privacy with regard to publication of the photographs? Oddly enough, no-one seems to have attempted to assert that Prince Harry had an expectation of privacy regarding the fact that the party took place. Perhaps that is tacit recognition that that genie was long out of the bottle. So the issue focuses on the photographs.
What does not seem to have been discussed in the debate so far is the definition of ‘reasonable’ in the context of reasonable expectation of privacy. Lord Hope of Craighead provided such a definition in Campbell v MGN. Here it is:
‘The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.’
That definition has been expanded and applied by the English Court of Appeal in Murray v Express Newspapers in 2008 and by Mr Justice Tugendhat in the LNS/John Terry case in 2010:
‘The question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.’
So, would a reasonable person of ordinary sensibilities feel that he had a legitimate expectation of privacy where he had invited a group of random strangers, who were very likely to possess smartphones which they would use to document their activities via online social media networks, back to a hotel suite and then to engage in a spontaneous game of strip billiards during which he took off all of his clothes and behaved in an uninhibited manner in the full view of the assembled guests?
Some commentators have reserved particular outrage for the possibility that The Sun has paid to publish the photos. Ironically, if they have not then that is where a clear legal breach is likely to have occurred. If The Sun has not obtained consent for publication from the holder of the copyright in these photographs then whoever that is may bring a claim for infringement.
On this analysis it is questionable whether publication of the photos of Prince Harry breach privacy law or even breach the Editors’ Code of Practice. There are likely to be many commentators who disagree with this analysis – but what may make some apoplectic will be the realisation that the most clear-cut legal protection is for the person who took the photographs rather than for the persons who appear in them.
Brian Pillans is a lecturer in law and journalism a Glasgow Caledonian University and sets the National Council for the Training of Journalists’ Scots law syllabi and examinations.