Privacy law is no answer to the wild west of the internet
Published in: Daily Mail
The topless pictures that have been published of the Duchess of Cambridge are not just a repugnant invasion of her privacy.
They also represent a wake-up call — not just to the Royal Family but to everyone — that we inhabit an utterly changed information landscape. It’s now a media Wild West out there.
The pictures were taken of the Duke and Duchess, apparently from a road, by paparazzi with telephoto lenses as the royal couple sunbathed on holiday at Viscount Linley’s chateau in Provence.
Their decision to take legal action against the French magazine Closer which first published the pictures is entirely understandable.
For those photos represent an intolerable intrusion that simply cannot be justified. The attempt by Closer's editor to justify publishing them, on the basis that they were charming scenes of a couple who were in love and that, anyway, topless sunbathing was no big deal, was specious and self-serving.
More urgently, the dread is that the Duchess will be stalked by the press and paparazzi as was Princess Diana, and will come to feel beleaguered and spied upon.
Given the royals’ hyper-sensitivity to media intrusion as a result of the experiences of the late Princess of Wales, it is a matter of regret that the Cambridges, of all people, weren’t more cautious about assuming they could ever be safe from a prying camera lens.
Nevertheless, the fact remains that the Duchess has fallen victim to an intrusion for which there is no possible excuse. She was enjoying a private holiday in a private house.
Unlike the pictures of a naked Prince Harry, whose confidence was betrayed by strangers whom he had chosen to invite into his hotel suite, the pictures of the Duchess were taken by photographers spying on her in a private moment in order to make money out of public voyeurism.
If the Duchess is bound to feel violated by such behaviour, the distress of Prince William must surely be far more acute.
For the echoes of the fate that befell his mother, Diana, who was actually fleeing from the paparazzi when she died in a Paris car crash in 1997, are all too painful.
In fact, the intrusion upon the Duchess is especially objectionable. It has to be said that Princess Diana courted and manipulated the media. By contrast, the Duchess has played an absolutely straight bat and, clearly valuing her privacy, has never sought any more publicity than her duties require.
William’s overwhelming concern that his wife should not be hounded as he believes his mother to have been is entirely understandable. And so it is right for the couple to try to prevent history repeating itself by drawing the firmest possible line in the sand.
Having said that, however, one wonders whether this is merely a gesture which will be washed away with the tide.
For the royals are seeking to curb the excesses of an anarchic, global media. And, frankly, they have as much chance of doing that as did Canute in attempting to hold back the waves.
These pictures have already been published not just in France but throughout Europe. At the weekend, the Irish Daily Star published 13 of them along with an image of the topless one published by Closer. Greece’s Eleftheros Typos news-paper published two photographs of the Duchess, one topless, on its front page.Some 200 pictures taken of the couple have been reportedly offered to publications around Europe.
And Chi magazine, an Italian rag which in 2006 sickeningly published a picture of the dying Princess Diana — and whose owner Mondadori also publishes Closer — has said it plans to publish today no fewer than 26 pages of these pictures.
Indeed, the issue here is not with the British press at all. Offered these pictures, every British paper has refused to touch them. This is because self-regulation here has worked.
Publication of such pictures — where those involved had a reasonable expectation of privacy and there was no public interest — is outlawed by the PCC code of practice. And the British press, which has significantly cleaned up its act since the death of Diana, knows the public would revolt against it.
By contrast France, where these pictures have been published, has a constitutional right to privacy. Yet in practice, this statutory law of privacy protects the powerful — but throws everyone else to the media wolves.
Thus, French privacy law allowed former President Francois Mitterrand to conceal the existence of his secret mistress and their illegitimate daughter up to his death. And the French learned about the sexual proclivities of the disgraced former banker Dominique Strauss-Kahn only when he was accused of rape in New York.
Yet despite the fact that publication of these pictures is undoubtedly illegal in France, the editor of Closer, like many others, will have made the cynical calculation that the likely penalties would amount to far less than the financial rewards.
Moreover, even if the royals succeed in stopping this or that paper from publishing any more pictures, or in sending any journalists to jail, the fact remains that — as with the pictures of Prince Harry at his strip billiards game — the internet has already sent many of these images of the Duke and Duchess of Cambridge around the world.
All this demonstrates the utter futility of attempting to impose further controls on the British press when it is impossible to regulate a media that is now global and instantaneous.
Social media has now bust the very idea of a privacy law wide open. At his inquiry into press ethics, Lord Justice Leveson suggested that the issue of regulating Twitter and Facebook should be separated from regulating the press.
He said he thought there was a difference between the online version of newspapers or magazines, and social media which merely hosted conversations between individuals. But many personalities have found to their dismay that activities they had hoped would remain private have been transmitted to the world through Facebook and Twitter.
Further regulation of the press would do nothing to protect individual privacy in the Twitter and Facebook age — but would merely hand yet another weapon to those who wish to control public debate.
Thus it is not surprising — even if it is deeply alarming — that Labour Party sources have revealed that a Labour government would implement statutory regulation of the press if Lord Justice Leveson recommends it.
Since Leveson himself has repeatedly said he is very alive to the danger of fettering a free press, it is to be hoped that he will not go down this road.
Whatever he concludes about regulating the press, however, the fundamental change produced by the internet is now a fact of life.
This means individuals have to change their behaviour accordingly. The royals need to assume that, whatever they may choose to do in a hotel room or on a private terrace, they cannot assume their behaviour will remain unremarked.
When asked last week by a child in Kuala Lumpur what his secret power would be if he were a superhero, Prince William replied that he would like to be invisible.
Given the scars he so obviously still bears from the traumatic events of his childhood, it was a poignant reply. But he cannot be invisible. He and his Duchess are a future King and Queen.
Rather than blow her top after the event, the best advice to the Duchess is keep it on in the first place. As with the British media, so it is with the royals: the best protection against violation of privacy is self-regulation.