Kate Middleton obtains injunction in relation to topless photos - But can the Palace contain further publication of the images in the digital age?

5 October 2012

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, surfaced. These images were reportedly taken with a long lens camera from a public road by an unidentified photographer, whilst 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 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, taken on a beach in the Seychelles with Kate in a bikini, attracted censure from the Palace.  Lara Bingle has had unauthorised naked pictures published in the media on a number of occasions, most recently photos taken without her consent or knowledge with a long lens through the window of her Bondi apartment. Candice Falzon and Sonny Bill Williams had an intimate photo taken on a mobile phone and published in the Sydney Daily Telegraph.  These images fill tabloid publications and papers every day in this country, and the pictures of the Duchess remain unpublished.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 far from the first Royal to be caught out by the tabloid press. What is remarkable about the latest images is that the British press is unable, or unwilling, to publish them whilst their European counterparts do so.  

Further, despite obtaining an injunction in a French court, the Royal family continues to face a multi-jurisdictional battle to contain the spread of the photos which highlights the difficulty of maintaining privacy in the digital age, in which 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. Once there was a time when, notwithstanding the fact that these photos are a clear invasion of the Duchess’s privacy, the British press would have published them without hesitation.  The Leveson Inquiry has clearly given British tabloid editors pause for thought in an activity that was once Fleet Street’s bread and butter.

Images published in French Closer

The images of the Duchess of Cambridge initially were published in French Closer magazine, and then again in the Berlusconi-owned Chi magazine in Italy, then on countless online sites globally. The Irish Daily Star followed, and other European papers are reportedly considering printing the unauthorised images. 

As in the UK, French law provides individuals with strong privacy rights, but the temptation is strong for editors to publish material in breach of privacy laws when the revenue and publicity generated from the circulation of the pictures likely far outweighs any fine imposed by the courts or regulatory bodies. 

On 18 September 2012 the Palace obtained an injunction in a French Court in Nanterre, enjoining Closer from further publishing topless photographs of the Duchess, and from re-selling the pictures to other media. Closer was also ordered to surrender the pictures to the Royal couple.  And fined 10,000 Euros per day for any delay in handing over the images.

The Royal couple has gone further, filing a criminal complaint under France’s privacy laws under which Closer could face a fine of up to 45,000 Euros and its editor up to a year in prison. As well as criminal proceedings against “persons unknown” in reference unidentified photographer who took the pictures, still unidentified despite a French police raid on the Closer offices.

Despite its court win, the Royal family faces significant obstacles in its attempt to stem the tide of further publication. Shortly after the injunction was obtained in France, Danish magazine Se Og Hor (See And Hear) 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. As with the series of footballer and celebrity ‘super-injunctions’ before the English courts last year, the online dissemination of these photos highlights the futility of trying to control one section of the media while information remains readily available on another 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 media in Britain.  

In the UK the law affords protection to information in respect of which there is a reasonable expectation of privacy, and this has been reinforced by recent decisions, discussed in detail here.

The Australian Position

It remains to be seen whether any Australian media organisations will move to publish the pictures or whether the Duchess will be afforded the same protection in this country she is enjoying in the UK. 

There is no tort of invasion of privacy in Australia, so publishing is 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, generally it does not 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.  When seeking redress for an invasion of privacy, individuals can pursue common law actions including trespass, nuisance, defamation, passing off and breach of confidence.

Sanctions can be imposed on media outlets by regulatory bodies such as the Australian Press Council or the Australian Communications and Media Authority, but these don’t always provide sufficient deterrent when high circulation figures and publicity are at stake.

It is worth noting that the current “stage one” of privacy reforms in Australia, addressed in the Privacy Amendment (Enhancing Privacy Protection) Bill 2012, doesn’t introduce new statutory causes of action for serious invasion of privacy.  In its 2008 Report “For Your Information: Australian Privacy Law and Practice”, the Australian Law Reform Commission 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 large number of recommendations for privacy law reform in the ALRC’s 2008 Report, 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 is expected to be addressed in the second stage of reforms.

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Helen Clarke

Partner. Brisbane
+61 7 3228 9818