The recent publication of topless pictures of The Duchess of Cambridge in a French magazine, following so closely after the exposure of Prince Harry’s nocturnal activities in Las Vegas, has returned the issue of the private lives of public figures to the forefront of the news once again. Coming as Lord Justice Leveson prepares his report arising from the eponymous inquiry, there are a number unresolved debates relating to the publication of private information about celebrities or public figures such as the royal family.

The first of these issues might be described as the expectation of privacy. Harry and Kate, it can be safely said, must contend with higher degree of scrutiny being as they are official figures and prominent members of the royal family. Both of them have a quasi-constitutional role being as they are potential heirs (or spouses) to the throne, in this light they are undoubtedly prepared to accept a lesser degree of privacy than the ordinary citizen, particularly when engaging in their official duties. But a reduced expectation of privacy does not mean nullification. Kate in particular can be aggrieved that the intrusion of the camera lens was at a particularly intimate moment taken in a private estate while on holiday. Additionally, although Harry was at a party with members of the public the presumption would be that behind closed hotel doors the occasion is not a public one.

Free press absolutists could, and indeed have, argued that the very fact that these photos could be taken at all proves that they are in a public sphere. However that would not be the view of the majority of people and it is certainly not the view of the judges here, in France, or in the European Court of Human Rights. In France the law allows an individual ownership over their image and except in limited circumstances permission must be gained in order to publish or disseminate photos of the subject. The law is set out in the seminal cases involving Naomi Campbell in England and Wales, and Princess Caroline of Monaco on a European level; both cases held that even photos taken of public figures in public places can be an invasion of privacy if the activity the subject is engaged in is a private one. Indeed in both those cases the use of photography was a key factor in the finding a breach, significantly more imitate as it is than a mere description of the action. Both Harry and Kate’s claims to privacy would fall well within this legal boundary.

The question then becomes about a public interest justification for publication. Again the role and status of the individual is crucial. Coverage and reporting of a public figure’s private activities can potentially be of value to newspaper audiences if it reflects on hypocrisy or corruption, but in both the Harry and Kate cases the waters are much murkier. The law in France, while stricter than in the UK, allows for exceptions when public figures are engaged in public duties or activities. With the Kate photos it was always going to be fascinating to see what possible justification was offered by Closer France magazine for what was ostensibly a blatant intrusion. The editor appears to have sidestepped any discussion of privacy or justification claiming merely that the photos are not shocking and are equivalent to sunbathing that occurs around France. It is fairly easy to see the flaw in both the initial assertion and then the subsequent reasoning of that explanation.

With regard to the Harry pictures, both the Sun and sister paper the Sunday Times attempted a free press/public interest defence of their publication. The Sun’s argument rested chiefly on the idea that the photos were necessary to give full discussion to the controversy i.e. that the furore already existed so they would be remiss in their press responsibility not to give it full coverage including the offending photos. Now this is a very handy piece of circular reasoning from The Sun and for the media in general. Essentially this says that anything published in the news automatically becomes newsworthy and thus by definition is in the public interest. Taken to its logical conclusion there is no subject that is out of bounds because even the assertion of that notion would create a controversy worthy of discussion. To be fair to the Sun, they were not the first to show these photos, they were of course published by an online gossip site, but the newspaper subsequently helped generate publicity. Additionally no single press outlet can be viewed in isolation, but rather the entire realm of the media must be considered when considering how to tackle problems of privacy and publication.

The Sunday Times took a slightly different justification track in its appeals to the rationale that a) these pictures were already in the public domain i.e. the internet and b) that newspapers would die off if they could not compete with online resources. These ideas highlight perhaps the two most interesting aspects to emerge from these twin cases.

The first issue is the impact of the internet upon the relationship between the public domain and private information. This is becoming an ever more important factor in battleground between the law, the press, and the individual regarding privacy. If we can accept that on face value Harry’s privacy was invaded by both the amateur photographer and the website that initially published the pictures, does the subsequent viral dissemination and viewing by thousands, perhaps millions online render any subsequent publication not a breach of privacy? In other words can private information be rendered no longer private simply by virtue of reaching a critical mass of exposure?

On a practical level one might instinctively say yes. However, the courts may not be so inclined to agree. On a point of principle the courts may take the view, as they do in libel law, that each individual publication is a unique stand alone breach.  This is because to concede that publicity decimates the private nature of personal information would be to render the very concept of privacy virtually meaningless in the internet age. In an extreme yet not unthinkable example it would open the door for a scurrilous media outlet here in the UK to use the internet through a proxy website in the US to generate a controversy, release the information or pictures into the public sphere and then report both with the justifications provided by the News Corp publications above. There is no suggestion that this occurred in the immediate instance but it shows how any nascent privacy protection we have built would become obsolete.

Take the unfolding situation with William and Kate in France; applying the logic and reasoning of the Sun and the Sunday Times, while there would be no justification for publishing the pictures in the first instance as Closer France have done, once a controversy has been generated (as it has) and the photos have gone viral (as they have) then there is no reason for the press in this country not to publish all of the information and pictures subsequently, to use The Sun’s words, “…in order for the debate around them to be fully informed”. The fact that this has not yet occurred is more likely due to a fear of a public backlash in this exceptional case, rather than any ethical notions of self-restraint; a self restraint the press in this country have consistently failed to show, calling into question the entire system of self-regulation.

The second argument of the Sunday Times, regarding the financial threat to newspapers, is based upon the indisputable fact that the press in this country faces an existential threat if it fails to curb declining profits. This was traditionally the News of the World’s justification for its celebrity exposés: that those stories paid for the real investigative journalism into crime and corruption. No lesser legal authority than Lord Woolf gave credence to this concept commenting, as he did in the Gary Flitcroft case, that the broader public interest in a surviving viable press is served by the commercial considerations of publishing what the public want to read, base as that may be. This of course is very dangerous rationale indeed, circumventing as it does the small matter of right and wrong. There are many examples of things – phone hacking for one – that could help the circulation or profit of newspapers but are jettisoned in the knowledge that considerations of fairness and justice are more important than profit.

Thus we arrive at the crux of the issue and that is the question of whether The Sun and its tabloid brethren really base their editorial decisions upon notions of public interest, informed debate, and vibrant democracy or upon the principle of profit. The somewhat strained arguments given by News Corp acolytes in defence of the recent photo publication indicate that commercial considerations are merely being covered with the fig-leaf of civic justification. What do those pictures of Harry, and in the more extreme case Kate, along with numerous other celebrity stories actually add to the national or collective understanding and discourse? Is the public interest limited to information that affects us politically and socially or do we extend it down to the prurient details of sex and scandal?

Paul McMullan one of the first journalists to speak openly about the NOTW phone-hacking culture honestly if somewhat cynically swims against the prevalent tide in legal and media spheres which says the public interest is above and apart from that which the public is merely interested in. McMullen argues that if people are willing to pay for a story then that is the only barometer necessary to gauge justification. This is a minority view, at least when expressed publically, but one suspects that this is the real motivation for much of what makes up this countries tabloid fodder.

The immediate example of Closer France is a case in point. It has been pointed out that the criminal and civil penalties likely to be levied against the magazine are small compared to the boost in recognition and circulation it will receive. This cynical calculation is said to be the tip of a wider tabloid campaign to erode French privacy standards and increase commercial potential. The French law could be subject, ironically enough, to a privacy challenge in Strasbourg if their law is failing to protect Article 8 rights unable as it seems to deter breaches by the press. This raises the further question, for another day, of how far can and should the law try to alter press behaviour through punitive damages. After all significant costs and damages awards to the likes of Max Mosley have so far not impacted greatly upon celebrity press stories in the UK.

If it is true as reported that Rupert Murdoch expressly demanded The Sun publish the Harry photos then it is clear his moment of contrition is over and he wants to draw a line in the sand against further press restriction; Murdoch played the part of sorrowful proprietor when the moment called for it but humility is one thing, eating into profit is another. If commercial considerations are at the centre of this discussion then let’s have an honest debate and not hide behind the nobler functions of the press. We need to decide if we want to put profit and circulation above privacy, decency and quality of public discourse. It is no exaggeration to say that those are the values at stake, and this is essentially what Leveson is about. We need a clearer definition of our public interest, and while that is easier said than done, I suspect naked pictures of Harry and Kate are not part of it.

Oliver O’Callaghan is a PhD researcher in Press Freedom and Privacy at the Centre for Law, Justice and Journalism, City University London