Australia: Prince Harry, those naked pictures and the question of the right to privacy in the digital age

This week has provided a stark illustration of the difference between current privacy laws in Britain and the rest of the world. As pictures purporting to be of a naked Prince Harry were first published by US tabloid website TMZ, and quickly re-published globally by major media outlets, British newspapers and websites find themselves reluctant to publish them.

This is due to the development of privacy law in the UK over the last decade, which has been carefully watched by the media industry in Australia. Ten years ago, much like in Australia, there was no real law of privacy in the UK. However in 2008 Max Mosley, former FIA boss, succeeded in his privacy action against The News of the World after it published the article under the headline "F1 BOSS HAS SICK NAZI ORGY WITH HOOKERS" and accompanying unauthorised video footage on its website. The decision provided an enormous boost to the development of the law of privacy in the UK. More recently, privacy law issues in the UK have been focussed on a series of phone hacking allegations and the subsequent Leveson Inquiry. These developments have clearly given British tabloid editors pause for thought before publishing kiss-and-tell celebrity exposes that were once the bread and butter for Britain's Fleet Street.

Doubtless, in the United Kingdom celebrities, public figures and Clarence House will take comfort from the inroads made in privacy laws in Britain. However, some media commentators argue that this week is evidence of the 'chilling effect' that privacy laws have had on journalism in the UK, with CNN reporting that the Harry scandal proves that Fleet Street has 'lost its sting' in the aftermath of the Leveson Inquiry.

But what does this mean for the Australian media? Should Prince Harry enjoy the same right to privacy in Australia as he seems to be enjoying in the UK?

Globally, millions of people have now viewed the photos, which have been re-published by a broad range of media outlets including TIME, the Huffington Post US, Yahoo!, United Press International, Toronto Storm, CBC Canada, Nigeria News, The Iranian, The Brisbane News and the Times of Malta. As the naked pictures of Prince Harry were first published on Wednesday evening by US site TMZ, British newspapers and websites initially found themselves to be unique in the world in being unable or unwilling to publish them, seemingly muted in the current circumstances. This was a watershed moment for the UK press, which has a long and proud tradition of both investigative and tabloid journalism.

On Friday, the Murdoch-owned Sun became the first British paper to publish the photos. In a video posted on the paper's website, Managing Editor David Dinsmore said the decision to finally publish the pictures was not taken lightly but concluded that "for us, this is about the freedom of the press...the ludicrous situation where a picture can be seen by hundreds of millions of people around the world on the internet, but can't be seen in the nation's favourite paper read by eight million people every day." It has been reported that the Press Complaints Commission (PCC) has received over 850 complaints as a result of the Sun's publication. The outcome of these complaints, and the question of how many other British papers will follow the Sun's lead and publish the pictures, remains to be seen.

The Royals are no strangers to tabloid scandal and Harry is clearly not the first member of his family to be caught out by the British Red Tops. In 1991 naked photos of Prince Andrew were published in The Sun and a year later the infamous toe-sucking pictures of his wife, Sarah Ferguson, the Duchess of York followed. In the same decade, topless pictures of Sophie, Countess of Wessex, were published and both Prince Charles and Princess Diana fell victim to the tabloid publication of covert, unauthorised recordings of their intimate telephone conversations with Camilla Parker Bowles and James Hewitt respectively. Whilst Royal scandal is nothing new, what is interesting is that the current privacy laws in the UK appear to be affording Harry a greater degree of protection than the previous generation of the Royal Family received. This is a fact that resonates loudly in a week which marks the fifteen year anniversary of the death of the Princess of Wales.

Right to privacy in the UK

Today, the right to privacy in the UK arises primarily through the incorporation of the European Convention on Human Rights into its national laws. Article 8 of the Convention states that "everyone has the right to respect for his private and family life". Weighed against this is Article 10 of the Convention, which guarantees freedom of expression and freedom of the press.

In the UK the law affords protection to information in respect of which there is a reasonable expectation of privacy, even where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence. This balancing exercise is recognised in the UK as turning to a large extent, upon proportionality. The court must consider whether the degree of intrusion into the claimant's privacy is proportionate to the public interest supposedly being served by it. This became an important consideration in the case of the Michael Douglas and Catherine Zeta-Jones against Hello! Magazine, when they were awarded damages for a breach of privacy arising from the magazine's unauthorised publication of their wedding pictures.

This balancing act was further enforced by the decision in Mosely where Mr Justice Eady noted that "although the law of old-fashioned breach of confidence, deriving from equitable principles, has been well established in the UK for many years, the enactment of the Human Rights Act 1998 and the Convention has undoubtedly extended these principles. Public interest is one of the factors considered when balancing privacy against press freedom as expressed in Articles 8 and 10 of the convention".

This week a Clarence House spokesman confirmed that it had contacted the Press Complaints Commission (PCC) in the UK about the images of the Prince and his right to privacy under the law and the PCC's code of conduct. Clause 3 of the PCC Editor's Code of Practice states "it is unacceptable to photograph individuals in private places without their consent". This raises a consideration of whether the Prince had a reasonable expectation of privacy in his hotel suite on a private holiday sufficient to engage Article 8 of the Convention or whether there is an overarching public interest in this information, underpinned by Article 10 rights.

Should there be a right to privacy in Australia?

In Australia, the media is not bound by decisions like Mosley and as the Australian media proceeds to publish the Prince Harry pictures this week, our press is arguably more robust as a result.

That is not to say however, that this area of the law in Australia is not fraught with uncertainty and full of complex challenges for both traditional media and online publishers who are subject to legal regulation, including breach of confidence laws. Earlier this year, a 20 year old Sydney man was charged under section 578 C of the Crimes Act 1990 (NSW) and sentenced to six months imprisonment for posting nude images of an ex-girlfriend on his Facebook page. In 2010 a schoolgirl was ordered by the Federal Court to cease publishing naked photographs of two AFL players on a Facebook page, where she had obtained the photographs without the players' consent, although the identity of the three players were subsequently widely published. In 1991, Andrew Ettinghausen succeeded in an action for defamation where it was found that publication of naked pictures of the rugby league player had exposed him to ridicule.

As the law in Australia continues to play catch up with developments in online and social media, Australian publishers will continue to watch this space and proceed with caution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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