Splashing a topless Duchess

15 09 2012

Category; Law, Privacy

British newspapers are crowing that they refrained from publishing photographs of a topless Kate, Duchess of Cambridge, while a French magazine, (to use tabloid terminology) splashed them. And that despite France having criminal laws protecting privacy! (click here for article)

The British papers are doing all that refraining, and all that pointing out of the pointlessness of a privacy law, because we are in the eye of the tornado that is the Leveson enquiry.

Sir Brian is writing up his report at the moment; preparing the proposals that will frame the future of media regulation. Like a child in the run-up to Christmas, the British press wants the present-giver (or denier) to see what good boys and girls they are, unlike the boys and girls across the street.

Lord Justice Leveson asked me my views on this when I visited his enquiry; alright, strictly speaking he asked some other people who were witnesses to the enquiry while I was just in the public gallery, but it was the same room…

In any event, here’s my suggestion for press regulation in relation to privacy; make the punishment fit the offence.

A magazine publishes the photos so that more people buy it. Where someone’s privacy has been invaded the court could award compensation related to the amount the newspaper or website has profited from the intrusion.

The French law is, I understand capped at around a £36,000 fine. My suggestion is very different. A fine is money that goes to the state as penalty for transgressing the public boundaries; an offence against society.

These photos are an offence against an individual and can be dealt with by the civil rather than criminal courts.

It would be a fair system; the papers would lose the amount they had gained (plus costs) which ought to be enough to discourage them, and the victim would be compensated a just amount effectively set by the market.

But privacy is rarely clear cut; different public figures can expect different levels of exposure, in consideration, for example, of how much they court the media. Or there may be public interest reasons to publish.

How can the press know whether or not they are likely to fall foul of privacy laws? At the extreme end, and where the potential victim has advance notice, they can already apply for a court injunction to prevent publication. That right would remain.

But with my proposed system, where a paper wants a steer before publication it could ask an independent, authoritative, press advisory body; an expert ethical committee. The ruling of which wouldn’t be definitive, but would be persuasive.

That’s to say it couldn’t protect the paper from a potential lawsuit, but it would show that the newspaper, magazine or website had acted in good faith, which may affect the outcome or level of award in the case.

The individual could also approach the advisory body before publication, but whatever the advisory body said, which given the constraints of workload and time would be broad-brush and rule of thumb, would not prevent publication.

The effect would be restricted to any post-publication legal action, but that could in itself make the newspaper think twice before breaching someone’s privacy.

In cases where it appeared a victim’s rights had been trampled on, but they lacked funds or sophistication, the independent press advisory body could pursue an action on their behalf.

It’s a just and fair approach that does not censor prior to publication, protects the rights of the press, and of individuals, and can broadly be accommodated within already existing structures and principles of civil law.

So Sir Brian, that’s my suggestion…

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