The publication of pictures of a bare-bottomed Princess Kate in Australia have aroused interest on several levels, but one of them is the question of privacy, of course. The matter is similar to the interest that occurred a couple of years ago when the paparazzi snapped pictures of Kate Middleton sunbathing nude, to which the royals took more than offence and claimed breach of privacy and, on that occasion, trespass as well.
But the Australian incident when Princess Kate was snapped “going commando” has prompted further speculation, although less intense than the more flagrant photography undertaken by the Italian photographer who took the nude pics.
Comments made about the privacy issues by Daniel Solove, Professor of Law at George Washington University Law School, the founder of TeachPrivacy, a privacy/data security training company, and a Senior Policy Advisor at Hogan Lovells.
Many pundits have said dismissingly that any legal action Middleton might take is essentially a fool’s errand and she shouldn’t have expected privacy. For example, Donald Trump has declared in a tweet that Middleton has “only herself to blame.” According to a Washington Times editorial: “Princess Kate needs to remember there is no privacy, so keep your top on.”
These sentiments are the typical reactions to media invasions of privacy — people should expect no privacy whenever they are outside the confines of their homes. I contend that this view isn’t correct both descriptively and normatively.
The Washington Post article goes on to state: “American civil law is fairly clear on this sort of thing: You can be held liable for photographing someone in a private setting without his or her knowledge or consent. The American Law Institute, in summarizing court decisions, says the photographer’s actions could amount to an ‘intrusion upon seclusion,’ a civil offense.”
This statement isn’t quite accurate — the law is far from “fairly clear on this sort of thing.” Some background about the law is in order. In the United States, there are torts to protect privacy, such as intrusion upon seclusion and public disclosure of private facts. Intrusion upon seclusion protects against invading a person’s privacy in private places, and public disclosure of private facts protects against the dissemination of information that violates privacy and isn’t of legitimate concern to the public. In California, the Anti-Paparazzi Act, Cal. Civ. Code Sec. 1708.8, will make paparazzi liable for “constructive invasion of privacy” — attempting to “capture, in a manner that is offensive to a reasonable person, any type of visual image . . . of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image . . . could not have been achieved without a trespass unless the visual or auditory enhancing devices was used.”
One of the key elements to these torts is that there must be an invasion of “privacy” and many might conclude that Middleton has no privacy because she wasn’t in her home. Indeed, a number of courts cavalierly assume there is no privacy in public. But some other courts have concluded otherwise.
The US view, though, is generally dismissive of privacy in public — even where access by others may be restricted. I have long criticized this view of the law. See Daniel J. Solove, The Digital Person: Technology and Privacy in the Information Age (2004); Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (2011). In Europe, in contrast, the prevailing view of the European Court of Human Rights is that there is privacy in public — even for celebrities. In Von Hannover v. Germany, ECHR, 6/24/2004, the court held that Princess Caroline of Monaco could sue magazines for publishing photos of her taken while she was in public. And in Murray v. Big Pictures Ltd., [2008} EWCA Civ. 446, the England and Wales Court of Appeal concluded that the son of J.K. Rowling was entitled to privacy protection from being photographed in public.
So in the US, liability for photographing Middleton would be far from clear, but in the EU, she has a much stronger claim.
The Washington Post article also states: “But publishing such photos may be another matter, says Eric Easton, a law professor at the University of Baltimore’s School of Law. ‘Courts are very reluctant to silence newsworthy speech, even if [the speech] has the effect of disturbing someone,’ he said.” This statement is technically correct, but misleading, because it assumes that courts will find the photos of Middleton to be newsworthy. Under the public disclosure of private facts tort, one can be liable for highly offensive private information about another, but only if that information is not newsworthy — “not of legitimate concern to the public.” Even for celebrities, courts conclude that nude photos are not newsworthy. As the ALI Restatement commentary notes (the ALI Restatement provides the formulations of the privacy torts that most courts have adopted): “There may be some intimate details of [a celebrity’s] life, such as sexual relations, which even the [celebrity] is entitled to keep to herself.” I think there could be liability for publishing the photos under the public disclosure of private facts tort.
I want to end by responding to the dismissive comments by Trump and others that people should expect no privacy in public. It is possible for the law to protect privacy in public. Middleton is not to blame. She was in a place where she was not readily accessible to the general public, and she should have a right to expect privacy in such a place. Although the privacy law in the US is weak, the response need not be to throw up one’s hands in futility. We don’t say that just because a thief can easily steal a person’s iPhone or iPad lying around on a table that people deserve to have them stolen. That’s why we have laws against theft — to protect against this kind of thing. The same goes for privacy. We want the law to provide protection because it is easy to violate privacy and we want to make it harder to do so.