With the 2012 publication of naked photos of Prince Harry in Las Vegas and topless pictures of Princess Catherine, the legal issues surrounding the privacy of the UK royal family have come to the forefront again. The same issues of privacy have been raised several times before, most tragically during the circumstances surrounding the death of Princess Diana.
Right to privacy
There is no explicit right to privacy in the UK. However, several laws create a back door version similar to this right. The main law which establishes this back door are the Human Rights Act (1998), with support from the Data Protection Act (1998). In fact, the Human Rights Act is the first time a right to privacy has been written into English law.
The Human Rights Act incorporates the European Convention on Human Rights into UK law. Protection of personal privacy can be found in Article 8(1) of the Convention:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
In disputes between private individuals, the Human Rights Act is considered to have horizontal effect, which means that the Act is interpreted the same way as if any participant in the dispute were a public body. Thus, this law applies to the UK royal family, whether some members of that family are considered public or private bodies.
Under the current interpretation of the Human Rights Act, publication of private material without permission is considered to be a detriment and a breach of confidence, even where a pre-existing relationship of confidence has not been established. The claimant only has to establish that there had been a reasonable expectation of privacy, as, for example, in a private hotel room. Under these conditions, personal information cannot be disclosed to other parties without the consent of the individual to whom it relates.
However, the Act also qualifies any right to privacy by giving several reasons why that right could be overruled. This has led some researchers to conclude that the British legal approach to privacy is fundamentally flawed.
The special status of the UK royal family
The privacy situation for the UK royal family is complicated by its special status in the UK. Some members of the royal family are simultaneously private citizens and part of the UK government.
While the royal family’s right to privacy as private citizens is no different from that of any other UK private citizen, their relationship with government means that some parts of their lives also fall under the public’s right to know what is in the national interest. Therein lies the rub.
The Press Complaints Commission
All major mass media publishers in the UK belong to the Press Complaints Commission (PCC). This voluntary regulatory body issues a code of practice which follows the Act closely. Specifically, the PPC Code forbids editors to print pictures where the individuals involved have “reasonable expectation of privacy,” unless it is in the public interest to publish.
Thus far, there has been a clear difference of opinion among the participating newspapers about what is in the public interest. This difference of opinion is seen most clearly in the British media’s approach to covering the royal family.
The PCC has previously upheld a complaint by the Duke of York about the invasion of his young children’s privacy. It has not yet investigated if there has been an invasion of Prince Harry’s privacy in Las Vegas, because this has not yet been requested by the royal family.
There clearly was an invasion of Kate Middleton’s privacy when a paparazzi photographer snapped topless pictures of Kate sunbathing at a private estate, using a telephoto lens from at least a quarter of a mile away. The invasion of privacy happened on French soil, so Prince William’s and Princess Kate’s criminal complaint will be investigated under French law, following the European Union standard. An injunction against the magazine was granted on September 18, 2012, the day after the complaint was registered. French law does not allow punative damages, but does treat invasions of privacy as a criminal offense carrying a heavy fine and a maximum jail sentence of 1 year.
As a voluntary organization, any UK newspaper is free to withdraw from the PCC at any time. After withdrawing, it no longer supports the PCC financially and is no longer bound by its code. The Northern and Shell (Express) Group of publications withdrew from the PCC in 2011.
Ironically, the precursor to the PCC, the Press Council, was replaced when several newspapers breached its standards of ethics in journalism. At that point, many people realized that the Press Council had no real teeth. It remains to be seen if the PCC will be any different.
Some information about the UK royal family, including pictures, are considered to be in the public domain. This is not the case for any picture which has been taken for commercial purposes, including pictures which are sold to the media. It is also not the case for any picture or other information which has been taken without consent, which definitely happened with the Kate Middleton topless pictures.
Privacy laws and the Internet
In theory, all legal issues about privacy also apply to the Internet. In practise, there is no way to contain data once it has been released on the Internet.
The original person who published or sold the personal information can sometimes be tracked down, but they may be outside UK jurisdiction. This is because the Internet is international. UK privacy laws may not apply at all in the original location of the data release.
This creates the increasingly common situation that personal information may be broadly disseminated on the Internet before it reaches domestic UK publications, where UK law or the PPC Code applies. This was the case with the Las Vegas Prince Harry naked pictures. The previous loophole where British publications could use social media to get around print restrictions was plugged by the PPC Code in 2011.
There is no worldwide consensus on the balance between personal privacy and free speech. An illegal publication of information in the UK may be legal in the U.S. Thus, the Internet is sure to continue to create legal privacy issues for the UK royal family.