Kate Middleton Obtains Injunction In Relation To Topless Photos - But Can The Palace Contain Further Publication Of The Images In The Digital Age? - Privacy Protection

FIRST HARRY, NOW KATE

Only a few weeks after pictures of a naked Prince Harry were published by US tabloid website TMZ and quickly re-published globally by major media outlets, topless pictures of the Duchess of Cambridge, Kate Middleton, have surfaced. These images were reportedly taken with a long lens camera from a public road by an unidentified photographer, whilse the couple holidayed in a private villa in France.

The Australian tabloid media has, historically, had a great appetite for images of this nature. Certainly, the Australian press has not shied away from printing similar images in the past. In July of this year, the Australian Woman's Day published long lens paparazzi photos of the Royal couple on honeymoon under a 'WORLD EXCLUSIVE' headline. The photos were taken on a beach in the Seychelles with Kate in a bikini, but they nonetheless attracted censure from the Palace. Lara Bingle has had unauthorised naked pictures of her published in the media on a number of occasions, most recently being a series of photos published without her consent or knowledge which were taken with a long lens through the window of her Bondi apartment. Candice Falzon and Sonny Bill Williams had an intimate photo of them taken on a mobile phone and published in the The Daily Telegraph. These images fill tabloid publications and papers every day in this country, and yet the pictures of the Duchess remain unpublished.

In Australia, there is no tort of invasion of privacy and the timing of the media's decision to self-moderate is important. Last month, the House of Representatives passed important reforms to the Privacy Act 1988 which Attorney-General Nicola Roxon said "represented the most significant changes to the Act since Labor introduced the Privacy Act in 1988". The reforms will now be considered by the Senate, and Australia is a step closer to enactment of the Bill that will implement the first stage of reforms to Australian privacy laws, with the release of the Senate Committee's report on the Bill. It should be noted that a new statutory cause of action for serious invasion of privacy is not proposed or addressed in the current reforms.

PUBLICATION OF THE PHOTOS

The Duchess is not the first Royal to be caught out by the tabloid press - many of her in-laws have gone before her. However, what is remarkable about the latest images of the Duchess is that the British press are also unable, or unwilling, to publish them while their European counterparts proceed to do so.

Further, despite obtaining an injunction in a French court, the Royal family are currently facing multi-jurisdictional battle to contain the spread of the photos, which highlights the difficulty of maintaining privacy in the digital age where online publications can reach a global audience instantly.

These photos have emerged at a watershed moment in the development of the law of privacy in the UK and in Australia. In Britain, the press awaits the publication of the findings of the Leveson Inquiry which was prompted by the News of The World phone hacking scandal. There was once a time when, notwithstanding the fact that these photos are a clear invasion of the Duchess's privacy and taken without her consent, the British press would have published them without hesitation. However, the Leveson Inquiry has clearly given British tabloid editors pause for thought before publishing paparazzi pictures of Royals that were once the bread and butter for Britain's Fleet Street.

IMAGES PUBLISHED IN FRENCH CLOSER

The images of the Duchess of Cambridge were initially published in French Closer magazine, and then again in the Berlusconi-owned Chi magazine in Italy. They were also reproduced on countless online sites globally. The Irish Daily Star soon followed suit and published the pictures, and other European papers are reported to be considering printing the unauthorised images.

As in the UK, French law provides individuals with strong privacy rights. Nevertheless, there is a clear temptation for editors to publish material which is in breach of privacy laws when the revenue and publicity generated from the circulation of the pictures would likely far outweigh any fine imposed by the Courts or regulatory bodies. A damages award or sanction can be insufficient to dissuade editors from publishing invasive or defamatory content.

On 18 September 2012 the Palace obtained an injunction in a French Court in Nanterre. The Court enjoined French Closer from further publishing topless photographs of the Duchess and from re-selling the pictures to other media. Closer was also ordered by the Court to surrender the pictures to the Royal couple. The Order provides that Closer will have a punitive fine of 10,000 euros per day imposed on it should there be any delay in handing over the images.

The Royal couple have also filed a criminal complaint under France's privacy laws under which Closer could face a fine of up to 45,000 euros and its editor could be sentenced to up to one year in prison. The Royal couple have also instituted criminal proceedings against "persons unknown" in reference to the as yet unidentified photographer who took the pictures. French Police recently conducted a raid on the Paris office of Closer magazine, in an attempt to obtain information about the identity of the photographer, but for the moment the person remains anonymous.

However, despite obtaining an injunction against Closer, the Royal family faces significant obstacles in its attempt to stem the tide of further publication of the images. Shortly after the injunction was obtained in France, Danish magazine Se Og Hor (See And Hear) has now gone further than any other publication and printed three additional photos of the Duchess changing her bikini bottoms.

Even as the Palace pursues a criminal prosecution of French Closer, the images remain readily available to anyone with access to the internet who can see them online. As with the series of footballer and celebrity 'super-injunctions' which went before the English courts last year, the online dissemination of these photos has highlighted the futility of trying to control one traditional section of the media while information remains readily available in digital format.

Notwithstanding the widespread dissemination of the photos in European publications and online, the images of the Duchess have yet to be published by any media outlet in Britain.

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. Recent decisions have provided an enormous boost to the development of the law of privacy in the UK – which are discussed in detail here.

THE AUSTRALIAN POSITION

It remains to be seen whether any Australian media organisation will move to publish the pictures or whether the Duchess will be afforded the same protection in this country as she is enjoying in the UK. To date, they have not been reproduced in Australia, but as an increasing number of European publications print the images, an Australian publication may well follow suit.

There is no tort of invasion of privacy in Australia, so whether the images of the Duchess are published in this country will be an editorial decision, as well as a legal one. The Privacy Act 1988 (Cth) regulates the collection, use, disclosure, quality and security of personal information. However, it does not generally protect against 'invasions' of personal privacy such as an interference with an individual's home or personal life, unless the invasion also involves a prohibited use of personal information. Absent a tort of invasion of privacy, there are other common law actions that an individual could pursue (depending on the circumstances) when seeking redress for an invasion of his or her privacy, including trespass, nuisance, defamation, passing off and breach of confidence.

Certainly there are sanctions that could be imposed on media outlets by regulatory bodies in this country such as the Australian Press Council or the Australian Communications and Media Authority, but these sanctions do not always provide the necessary deterrent for the Australian media when high circulation figures and publicity are at stake.

Whether an Australian publication will proceed to publish the images remains to be seen. However, the unauthorised pictures of the Duchess come at a time of renewed debate on privacy laws in the UK and here in Australia, and when privacy reform in Australia is imminent.

It is worth noting that the current 'stage one' of privacy reforms in Australia, addressed in the Privacy Amendment (Enhancing Privacy Protection) Bill 2012, does not introduce any new statutory cause of action for serious invasion of privacy. In its 2008 Report 'For Your Information: Australian Privacy Law and Practice', the Australian Law Reform Commission (ALRC) recommended that Commonwealth legislation introduce a new cause of action that would allow an individual to sue another person or organisation for a serious invasion of privacy. An individual would need to show that, in all the circumstances:

the individual had a reasonable expectation of privacy;
the defendant's conduct was highly offensive to a reasonable person of ordinary sensibilities; and
the defendant's conduct was either intentional or reckless (that is, not negligent).

Given the very large number of recommendations for privacy law reform in the ALRC's 2008 Report (there were 295 recommendations), the Federal Government decided to consider the ALRC's recommendations in two stages. The recommendation for a new statutory cause of action for serious invasion of privacy has not been considered in stage one, and is expected to be addressed in the second stage of reforms. Until then, the current state of play under the Australian laws outlined above will apply.

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