Having acted for a number of individuals who have suffered privacy invasions, my heart sank when I heard of the photos of the Duchess of Cambridge last week. My concern arises from experience that when photos like these are published, that’s it – privacy is lost and it is lost forever.
Despite the welcome restraint being shown by the UK press (perhaps due as much to an understanding of the affection the public has for the Duchess as ethical considerations) the photos are now widely available online. Furthermore Italian and Irish publishers have also printed. These images have now disseminated to the extent that they are always likely to be available to those who want to see it. Whether the Duchess is in Brighton or Borneo, whoever she meets will be aware of them. It is an enormous challenge for someone whose perpetual role necessarily requires endless public appearances.
There are a number of comparable examples of patently unlawful publications and, before we start convincing ourselves of the saintliness of the UK press, this country has had its unfair share. In the Leveson Inquiry we heard of the effects of newspaper privacy invasions in all shapes and guises. An example of where unlawful photos were disseminated on an enormous scale and internationally is Max Mosley’s case. He has given evidence of his experiences and has tried to use what happened to him to demonstrate why the law needs to be changed. Like the Duchess of Cambridge, Max Mosley was forced to deploy lawyers in many different jurisdictions and after the event of publication. Whilst politicians may find Mosley’s case difficult to empathise with, perhaps the Duchess’ experience may convince them.
The thing is; privacy can be protected. There is a simple solution. That is why we brought Mosley’s case to Strasburg, to argue that there should be a law requiring publishers to notify the targets of their proposed publications before publication if it relates to something that would threaten their privacy rights. The target should then have an opportunity to argue to the publisher and, if necessary the Courts, that publication should be stopped. The UK government responded to Mosley arguing that there is no comparable requirement elsewhere in Europe therefore there is no need for it in the UK. The publication of the photos of the Duke and Duchess of Cambridge demonstrate the inadequacy of practical remedies to protect privacy throughout Europe. The existence of the strict, old-established criminal and civil penalties for invading privacy in France is no good once the photos are published and privacy lost. She is right to bring these proceedings to enforce the principle but from now on it is an issue for her lawyers and the publisher, it has little to do with a remedy for the Duchess.
The UK should be leading the way in developing a jurisdiction in which privacy can be protected in practice as well as law. Due to the past behaviour of the UK press, the Leveson Inquiry was established and Lord Justice Leveson’s report will address the issue of privacy remedies and prior notification. I am optimistic that his recommendations will include significant improvements for the availability of effective protection from such intrusions. Parliament must show equal determination. The revulsion this nation has expressed for the publication of these photos, and similarly the disgust at the hacking of the phones of crime victims, demonstrates the need and will for change. We all know that privacy protection is not just for footballers. Privacy is a precious human need; every member of society should be adequately protected from unwanted intrusion whether they happen to be in the public eye (deliberately or otherwise) or are simply using the internet, social media and mobile phones.
But can a UK solution work in an internet age? It is often argued that it is pointless stopping publication in the UK when images or information can be published on the internet in other jurisdictions and be viewed by the whole world. In my mind this is not an excuse for failing to act, it is the childish “but he started it” submission heard in every playground. The consensus of UK newspapers not to follow French Closer’s lead despite the extent and sensation it has caused shows that we can do it. If we lead the way, others should follow. There can be no reasonable argument that the internet should operate above the law and the UK should play its part in bringing about an international solution to prevent it from being misused as a devastating multiplier of privacy violations. In the meantime, enormously powerful Internet search providers such as Google and social media sites like Twitter and Facebook must agree to abide by the rule of law in the UK if they are going to operate here and make their profits here. They must therefore agree to prevent access to unlawful intrusive material, and in doing so reduce in one stroke the impact of internet dissemination.
As she is demonstrating with her action in France, the Duchess of Cambridge is prepared to act irrespective of the fact that it will have no chance of stopping the publication of these photos. I wish her well in sending a message, not just in relation to future publications of her, but for the need for a respect for privacy – and an effective UK-led solution.
Dominic Crossley is a Partner and Head of the Defamation and Reputation Management Team at Collyer Bristow LLP. He acted as the lawyer for the victims in the Leveson Inquiry and acted for Max Mosley in his action against the News of the World and then in Strasbourg.