The law of privacy has once again been thrust into the spotlight in the aftermath of the publication of topless photographs of the Duchess of Cambridge, Kate Middleton, by French magazine Closer, rapidly followed by a newspaper in Ireland, and magazines in Italy, Norway and Denmark.
The photographs were taken with a long-lens camera as Prince William and the Duchess sunbathed at a private chateau in France.
The Duchess successfully obtained an injunction against Closer preventing the magazine from re-publishing or selling the pictures, and has also laid a criminal complaint against the unknown paparazzo who took the photographs.
Against the background of this scandal, it is opportune to pose the question of how South African law would have responded to such a scenario.
In South Africa, the right to privacy is a fundamental constitutional right.
The test for whether there has been a privacy infringement is the same under the common law and the press code: did the person, in those circumstances, have a reasonable expectation of privacy? If so, then such privacy can only be overridden by a legitimate public interest.
The crisp issue is then whether the Duchess had a reasonable expectation of privacy in respect of the photographs of her tanning topless. The status of the Duchess is of course relevant to the enquiry because the more famous the person, the lesser the reasonable expectation of privacy. As the Supreme Court of Appeal has held, “persons who move in or close to the limelight have to expect that their lives will be to some extent in the public domain and they must be prepared to endure somewhat more than the ordinary citizen.” (Mogale v Seima  ZASCA 101 ). But even public figures and public officials are entitled to object to the disclosure of intimate information.
The nature of the information sought to be published is also key to whether a reasonable expectation exists. The closer to the intimate personal sphere of a person, the more intense the right to privacy will be. This would of course apply to the photographs of the Duchess.
The place in which the photographs were taken is also instructive to the enquiry. Earlier this year, the European Court of Human Rights held that Princess Caroline of Monaco did not have a reasonable expectation of privacy over photographs taken of her and her family walking along the streets of snowy St Moritz. The more private the place, the stronger the argument that the person concerned has a right to have the public mind it’s own business.
The Duchess would therefore have had a reasonable expectation of privacy in respect of the topless photographs: she was in a private place, sharing intimate moments with her husband, and she was entitled to assume that she was far from the glare of publicity. This conclusion means that the publication of the photographs could only be justified by a legitimate public interest. And, as courts have taught us for decades, what is in the public interest is not the same as what is interesting or titillating to the public.
A good illustration of the public interest defence is the publication in 2007 by the Sunday Times of the article ‘Manto’s Hospital Booze Binge’. The article alleged that the former Health Minister had consumed vast amounts of alcohol before and after shoulder surgery.
While there had been a clear infringement of her privacy, the court ruled that the invasion was justified because of the pressing need for the public to be informed about the information contained in the medical records and the fact that the information in the records was relevant to the Health Minister’s constitutional and ministerial duties (Tshabalala-Msimang and Another v Makhanya  ZAGPHC 161).
Although the editors of the magazines that published the topless photographs of the Duchess have attempted to justify the publication, all of these justifications ring hollow. For example, the editor of Italian magazine, Chi, said that the pictures were in line “with the modern concept of the monarchy” and showed “the daily life of a young, famous, modern couple in love.” There is simply no public interest in the publication of the topless photographs of the Duchess. Under South African law, had publication occurred here, she would have a solid claim for breach of privacy.
Perhaps a more interesting question is the efficacy of privacy law in the celebrity-obsessed digital age. Even in circumstances where there is a clear expectation of privacy and no overriding public interest, in a world of trans-jurisdictional and largely unaccountable social media, it is almost impossible to keep private information private.
An example is the publication by the News of the World of a video depicting a sado-masochistic orgy between ex-Formula 1 boss Max Mosley and five prostitutes. The court held that Mosley had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property. The court also rejected the argument that there was public interest, finding no evidence that the gathering was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes.
Despite this, the video and stills remain easily accessible by anyone with a computer and an internet connection. The same is true of images of the topless Duchess.
The Duchess has succeeded in her legal action in France. But in the digital age, there is very little real protection for citizens against the dissemination of private information.
Traditional remedies such as damages awards and interdicts do little if anything to stem the flow of digital information. The digital information genie cannot be squeezed back into the bottle once it has become widely available.