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A bum deal: Prince Harry and a lesson in privacy

During a night in Las Vegas, Prince Harry played a game of strip pool.  From the pictures later published in the Sun, showing him without clothes, it seems clear that he did not win.

After a bit of fun on a night out the pictures inevitably started to filter out, initially via gossip websites in the United States and later via more established media outlets.

Initially it seemed that the British media would not follow suit in exposing the Royal birthday suit to wider scrutiny.

It may be that they had more than half an eye on Lord Justice Leveson’s imminent report on press ethics and regulation, or they may have been deterred by a letter from lawyers urging newspapers not to use the pictures on the grounds that they were taken on “an entirely private occasion” where Harry had a “reasonable expectation of privacy”.

In any case, the Sun elected to publish the pictures.  In doing so the accompanying editorial made clear that the publication was made on the basis of public interest, arising out Prince Harry s’ position and role, both as a Royal and an Army captain.

A lot of commentary around this issue has focussed on whether the Sun was right to publish these photographs.  This article does not seek to debate that issue, which is at its heart a simple one: the central debate is whether: (a) the Prince has a reasonable expectation of privacy in the relevant circumstances; and (b) if he does, whether the publication of the photographs is justified in the public interest.

This article does not seek to address that central debate.  Instead, it looks at what I believe is the much more interesting issue, namely that because they are established corporate organisations and in that sense the much easier target, the established print media is disproportionately restricted in dealing with this kind of story when compared to both its international rivals, and users of social media.

Whether the Leveson Enquiry is the right forum to do so, or not, the British legal system is going to have to address the critical issue it currently appears ill-equipped to deal with, namely how to avoid a situation where the worldwide media are able to publish what is essentially a British story while the British media remain unable to do so, or at least not without risk, and therefore unable to compete with their international competitors.

The reality of the modern media is that a sophisticated user of the internet may regularly look at the BBC, a British national paper, the New York Times, NBC, MSN and others.

Lots of the British public look at American fashion magazines or gossip websites.  The modern world is such that if a story is breaking, the internet user will hear about it (often via multiple news alerts), and the detail is only a Google search away.

Put another way, the reality was that a lot of people had seen these photographs as soon as the story got as big as it did.  The Sun’s rather clever mock-up of the photograph featuring their staff paid testament to this.  That image was already familiar to a lot of people.

The same was true in the Ryan Giggs super-injunction saga: the reality was that almost everyone had seen or heard Mr Giggs’ name before the newspapers were eventually allowed to publish it.  It became, frankly, the world’s worst kept legal secret, a running joke.  It may be stating the obvious, but the law should never allow itself to get into the position of being a running joke.

The Courts do seem to recognise that there comes a point where they must not keep swimming against the tide.  In the litigation in relation to the Ryan Giggs super-injunction, Mr Justice Tugenhadt declined to overturn an injunction on the basis that there was widespread breach of it via social media.

That argument is understandable: just because a law is subject to widespread breach does not mean it should no longer be the law.

However, in the Max Mosely case, Mr Justice Eady made the point that the Courts cannot assume the role of King Canute, and that must be right.

There seems, therefore, to be a fundamental decision that needs to be reached about the law of privacy, centred around how far an expectation of privacy can persist or continue in the United Kingdom where in the internet age widespread publication in another jurisdiction means that a large section of the UK public already knows what is meant to be private.

There are important questions of individual rights at play, as well as the ever present competition between freedom of speech and privacy.

This is an important issue that deserves proper consideration, but the stark reality is that an industry which is already facing extreme difficulties, both financial and competitive, currently finds itself further hamstrung by the fact that the legal system is highly adept and competent at dealing with the established media, but faces almost insurmountable practical problems in applying the same standard to the internet and social media.

This is an unfair competitive disadvantage, and it must be addressed if the national treasure that the British press clearly is can continue to serve its important functions.

That debate is one that is a lot wider and a lot more important than whether a photograph of a royal’s crown jewels can or should be published.