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Another week, another set of bikini clad pictures of Kate Middleton on a beach. It again raises the question: what is a reasonable level expectation of privacy for celebrities in respect of photographs taken of them when they are out and about in public.
Before the enactment of the Human Rights Act in 1988, English law did not recognise any right of confidentiality or privacy in relation to a person’s appearance in a public place. However, it has since been acknowledged that the publication of photographs can often be a particularly vivid means of conveying private information. For example, the photographs published by the Mirror of Naomi Campbell represented an infringement of her privacy when accompanied by text explaining that she had an attended an AA meeting, which was undoubtedly private information.
In the case of Von Hannover v Germany (2005), which involved the repeated publication of photographs of Princess Caroline, the European Court of Human Rights went further, saying:
“Although freedom of expression also extends to the publication of photos, this is an area which the protection of the rights and reputation of others takes on particular importance….Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment that induces in the persons concerned a very strong sense of intrusion into their private life or even persecution”.
The court in Von Hannover v Germany went on to suggest that a relevant factor would be the contribution that the published photographs make to a debate of general interest.
So, what does the editor of the Italian magazine, Chi, say about the photographs that his magazine published of Kate Middleton this week:
“The photographs, which can in no way be considered scandalous, were bought from an international photo agency, do not harm the image of the protagonists and the reaction of the media seems to me to me wholly over the top. Moreover, the photographs can hardly be considered an invasion of privacy when the subjects are public figures in a public place, in the open air; specifically on a beach surrounded by other bathers”.
In my view, whilst persistent photographs of this nature do not really convey very personal and private information (when not accompanied by text which does contain personal and private information), they do represent a strong sense of intrusion into Kate Middleton’s private life. Intrusion is obviously more difficult to establish in a public place, but arguably by no means impossible if one applies the reasoning followed in Von Hannover v Germany.
What is potentially critical in my view in any privacy claim made by a celebrity in relation to photographs taken of them in a public place is the intrusion itself and the effect that it has on them as the victim. If the celebrity has been repeatedly targeted, like Kate Middleton has, I would expect that evidence of intrusion is easier to demonstrate. However, the dominant consideration for a court when carrying out a balancing exercise between protection of private life against freedom of expression would arguably be whether or not the photographs contribute to a debate of general interest.
Although the UK courts have heard privacy claims involving celebrity photographs taken in public, we are still waiting for a high profile case where this balancing exercise is really tested on facts similar to those involving Kate Middleton this week…..
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