Monday, September 17, 2012

Private Acts in Public Places: The Duchess's Boobs & Prince Harry's Pool Party

The Middle East is aflame.  Afghan police cadets are killing American soldiers.  The Presidential Campaign is in full swing.  And what is the most talked about story on the morning news shows?

Kate Middleton's boobs.

The Duchess of Cambridge, wife of the heir to the throne of England, recently went romping on a deserted beach in the south of France with her hubby, but without her top.  Only the beach wasn't quite so deserted as it seemed.  There was a road nearby, and a lucky paparazzi got the tabloid shots of a lifetime.

So now word is that the Queen's lawyers are headed to court in France to try and put the genie back in the bottle.  It won't work.  Even if French courts fine the newspaper under French laws on privacy, the modest fine will not touch the profits made from these photos.

And nothing the French courts can do will keep the photos from being republished (21 more photos are appearing today in an Italian tabloid) or from spreading like a western wild fire across the Internet.

This follows on the heels of last month's photos of Prince Harry romping naked in his hotel room, showing off his cue stick in a sporting game of "strip pool" with a young lady.

So what is the rule of law on these seeming invasions of privacy.  Obviously laws differ from country to country.  But surprisingly, there is substantial disagreement among various states about the extent privacy is protected.  And many would be surprised to learn the limited extent to which some states recognize invasion of privacy as a tort.

For example, Indiana has refused to recognize public disclosure of private facts as an actionable claim for invasion of privacy.  Indiana's leading case on the subject stemmed from a purposeful disclosure to co-employees that a person was gay and was HIV positive.  The Indiana Supreme Court held that the person whose medical condition was disclosed did not have a right to sue.  Both the hospital whose nurse disclosed the information and the employee who publicized it at the work place, walked away without any liability. Other state jurisdictions have granted rights to sue in such cases.

The photos of the Duchess and Prince Harry present two significantly different situations.

In the case of Kate Middleton, it is unlikely any court in the United States would find the publication of the photos of her topless romp to be an invasion of privacy.  While she and the Prince were on a somewhat deserted stretch of beach, it was located near a public road.  The photographer was, according to reports, standing in a place where he had a right to be, using photos to record something which he could observe from that public spot.

An instructive case on privacy involved a N.Y. Post cover photo that illustrated a story on love in the workplace. It showed a couple walking arm in arm in Central Park wearing hard hats from their construction job.  The problem was, as the country song says, they were "married, but not to each other."

The invasion of privacy suit was thrown out because the photographer had shot his photo from a place where he had a right to be, recording an image which anyone could have observed from a public place.  The same seems true of the beach photos of the Kate Middleton.

Prince Harry's case is different.  He was in the privacy of his hotel room.  The photo was taken without his knowledge from a concealed camera.

This is similar to the Brad Pitt case, in which a photographer used an extremely long lens to peer inside Pitt's home, through mostly closed blinds, to snap a series of photos of Pitt walking nude down a hallway in his own house. Pitt was in a place, his home, where there was an expectation of privacy.  The photographer had to climb to a point he could peer over a high fence, then use an extremely long telephoto lens to get the shots.

In that case, the photo did not record was was observable by a person standing in a public spot.  It used extraordinary measures to circumvent the actor's privacy in his own home.  The court held that this was an invasion of privacy.

Were Kate Middleton and Prince Harry misbehaving?  Was this important news?  Is the the moral degeneration of the monarchy?

Poppycock, as the British might say.  They are young. The Prince was sewing his oats in a private room before heading off to Afghanistan.  The Duchess, still a newlywed, was romping on the beach with her handsome husband.  If that is wrong, then we are all in trouble.

So, were these photos intrusive?  Yes.

Were they an actionable invasion of privacy?   "No" and "Yes" (except in Indiana, where it is probably "no" and "no".

Is it smart to sue?  "No" and "No."

Are the photos ethical? That's really irrelevant. As long as someone can make money from them, they will be published.  

In one of those great ironies, today Kate is  strolling around with her husband in the Solomon Islands, being greeted by local ceremonies with topless beauties. Seems that in the  Solomon Islands culture, topless photos are unlikely to make the front page - or any page for that matter.

Maybe we could all take a lesson from the people of the Solomon Islands.

UPDATE:  Story on the evening news revealed (pardon the pun) that the photos of a topless Kate Middleton were taken by a woman photographer located approximately 1/2 mile away, using an extremely long lens.  This is far beyond the range of most lenses to obtain photos of an individual.  It would present an interesting case as to whether use of this camera and lens was an invasion of privacy when it probably did no more than capture what the photographer could have seen with a good pair of hunting binoculars while standing in a public location.

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