A royal upset and what it means for New Zealand

UPDATE Sept 30: The debate over Prince William and Kate Middleton's privacy gained heat overnight with news a Danish magazine has published bottomless photos of the Duchess.

The pictures, published in Se Og Hor (See And Hear), show the Duchess changing her bikini bottoms, and are taken from the front, according to a Daily Mail report (NBR has sighted the Se Og Hor photos, which also feature a shot from the rear).

The photos were taken from the same south of France holiday set that caused the topless photo controversy.

Prince William and Kate Middleton won an injunction against French magazine Closer after it published topless photos of the Duchess. Closer, owned by former Italian Prime Minister Silvio Berlusconi's Mondarori group, faces a €10,000 per day fine if it publishes further photos, and a €100,000 fine if it provides them to another publisher. Closer is also the subject of a criminal investigation initiated by a French court.

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OPINION

Gossip mongers are abuzz with the news that Kate Middleton has been photographed topless in France.

The Duke and Duchess of Cambridge have launched legal proceedings in France against the photographer who took the photographs, and the magazine that published them.

Will such action ultimately succeed, and what would have happened if a New Zealand magazine had done the same?

The French position
In France, politicians, the powerful and the wealthy are able to benefit from Article 9 of the French Civil Code, which provides that "everyone has the right to privacy".

The way this simple sounding decree has been interpreted has resulted in France having the strictest privacy regime in Europe and one of the strictest in the world.

French laws ban unauthorised disclosures about a person's private life, but also forbid the "theft of personal image", which technically would prevent anyone from taking another person's picture without their permission, even if such a photograph was taken in a public place.

Complaints about intrusions against privacy are regularly heard in the French courts and threats of such litigation is often enough to keep scandals under wraps.

It was not until Dominique Strauss-Kahn ran into trouble in the United States that details of his extramarital affairs were reported in France, and former president Francois Mitterand managed to keep his second family a secret from the public until he agreed to details being published shortly before his death.

It has also been reported that Prince Albert of Monaco managed to collect more than €500,000 in damages in a single year against various publications in France for invasion of his privacy and the privacy of his family members.

There seems little doubt in this case that Closer magazine has breached French privacy laws.

In addition to possible civil claims for breaching the duke and duchess's privacy, the magazine could face criminal charges for "fixing, recording or transmitting the image of a person in a private place without their consent".

The legal proceedings could become drawn out, however, as the paparazzi were allegedly standing on a public highway and the editor-in-chief of Closer is maintaining that the images merely show a couple in love on holiday and are in no way intimate (by French standards at least).

The first steps in the legal proceedings have been definitively won by the royal couple, with a French court ordering Closer to cease any further publication or distribution of the photos and return the originals to the duke and duchess.

The magazine will be fined €10,000 per day for every day it does not comply with the court's order. Separate criminal proceedings have also been initiated in another French court against the magazine.

If found guilty, Closer could be fined up to €45,000 and the editor could be jailed for up to a year.

The New Zealand position
In New Zealand, the right to privacy is protected by the ability to make a civil claim for invasion of privacy, as well as the standards imposed on the media by the Broadcasting Standards Authority and the Press Council.

Legislation such as the Privacy Act 1993 and the Harassment Act 1997 also have a role to play.

The Tort of Privacy

The New Zealand tort of invasion of privacy has been developing since the mid-1980s, with the case of Tucker v News Media Ownership recognising that it was arguable that a cause of action existed where there was an unwarranted publication of private details of a person's life, which were outside the realm of legitimate public concern and which caused injuries to feelings and peace of mind.

The definitive New Zealand case which dealt with the rights of the paparazzi to take photographs of celebrities (and the extent to which celebrities have a right to privacy) was the case of Hosking v Runting which was decided in 2005.

The case arose from attempts by radio personality Mike Hosking to prevent the publication of photographs of his twin daughters which were taken by a paparazzo as the family were walking down a public street.

The court recognised that a tort of privacy does exist, and that there are two fundamental requirements that must be satisfied to succeed in a claim for invasion of privacy:

• The existence of facts in respect of which there is a reasonable expectation of privacy.
• That publicity given to these facts would be highly objectionable to an objective reasonable person.

In the Hosking case it was held that there was no invasion of privacy and the photos could be published.

It was recognised in the decision that the tort of privacy only prevents the disclosure of private facts, not a general right to solitude, but that there was no simple test for determining what constituted "private facts".

The tort is to protect against the humiliation and distress a reasonable person would suffer from such publicity, and there is no need to show personal injury or financial loss.

On the side of the media, there is a public interest defence if the information published is newsworthy, and the principle of free speech and open reporting may only be limited to the extent that is justified in a free and democratic society.

It was hoped that the Supreme Court in the recent case of Rogers v TVNZ would provide some guidance on the current legal thinking as to the tort of privacy in New Zealand, but that case instead referred to the elements of the tort as it was set out in Hosking, while reserving their position that the law was not settled in this area.

The definition of what can constitute "private facts" is not clear. However, it would be reasonable to assume that a topless photograph of the future queen of England could constitute private facts in which there is a reasonable expectation of privacy.

It is also quite likely that publication of the topless photographs, which were taken in circumstances where the royal couple thought they were alone, would be felt to be highly objectionable to an objective reasonable person.

It has also been recognised in New Zealand that in some circumstances privacy could be breached by photographing a person in public, therefore the fact that the paparazzi were standing on a public highway would not be fatal to the claim if it were brought in New Zealand.

Such privacy cases are rare in New Zealand, and the law remains unsettled, so whether or not such a claim for invasion of privacy would succeed in the courts would depend upon how the court viewed the circumstances of the particular case.

The Broadcasting Standards Authority and the Press Council
The court process can be expensive and drawn out. Accordingly, some who feel their privacy has been interfered with may instead choose to complain to the BSA, which can award compensation of up to $5000 on upholding a privacy complaint.

Privacy complaints can arise under section 4(1) of the Broadcasting Act 1989, which provides that:

Every broadcaster is responsible for maintaining in its programmes and their presentation standards which are consistent with ... the privacy of the individual.

Privacy is not defined in the Broadcasting Act. However, the courts have stated that the term privacy, as it applies to broadcasting, should be given a fair, large and liberal interpretation.

The BSA has recognised that it is inconsistent with an individual's privacy to allow the public disclosure of private facts where the disclosure would be highly offensive to an objective reasonable person.

Unlike the tort of privacy, the BSA also recognises the rights of individuals not to have their solitude or seclusion interfered with. The media does, however, have a defence in the face of a BSA complaint if the matter disclosed is in the public interest, which is defined as of legitimate concern or interest to the public.

The Broadcasting Act only applies to broadcasters (usually on television or radio).

The publication of such pictures in a magazine or newspaper would not come under the auspices of the BSA, but any complaints would instead be directed to the New Zealand Press Council. The Press Council Rules are not as strict as those of the BSA, merely recognising that:

Everyone is normally entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless, the right of privacy should not interfere with publication of significant matters of public record or public interest.

Accordingly, the test that would be faced in the New Zealand context would be whether the photographs were sufficiently newsworthy, and disclosure was in the public interest and whether this outweighed the privacy concerns.

In France, too, Closer magazine is attempting to that the disclosure of the photographs is in the public interest, and the editor of the Irish Daily Star has argued that these photographs are newsworthy as Kate Middleton is a celebrity like any other whose photograph may be published if it would be interesting to the public.

The Privacy Act
The Privacy Act sets of 12 Information Privacy Principles, which operate as guidelines for agencies that collect, store or use personal information. If a person's privacy has been infringed upon a complaint can be made to the Privacy Commissioner if the action complained of has:

• Caused, or may cause, loss, detriment, damage, or injury to that individual.
• Adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of that individual.
• Resulted in, or may result in, significant loss of dignity, or significant injury to the feelings of that individual.

This means the invasion of privacy must have a significant effect on the person concerned, which goes beyond mere annoyance or worry.

The first incident of the topless photographs being shown would likely reach this threshold, but it may be more difficult to show that subsequent publication of the photographs has had the same detrimental effect on the subject.

Importantly, the Privacy Act does not apply to news media who are acting in the course of gathering, preparing, broadcasting or publishing news for public broadcast.

So in relation to the Privacy Act, the question would need to be asked first, whether the photographs constituted news, observations on news or current affairs, and, second, whether the publisher was part of the news media.

News media is defined as any agency whose business, or part of whose business, consists of a news activity. News and current affairs are given their ordinary meaning under the act, and it is likely that magazines that report on current affairs and celebrity news would meet this test.

In contrast, it should be noted that most bloggers are not "in business" so do not at present come under this exception.

Harassment
There may be some ability for people who are photographed to request that criminal charges be laid against paparazzi, but this will be limited to specific fact situations.

The Summary Offences Act 1981 provides that it is an offence to follow a person or watch or beset a person's house or place of business, but only if the behaviour was done with the intent of frightening or intimidating the person followed.

In most cases where paparazzi follow celebrities, the purpose will be to take photographs to sell to media, and any intimidation will be incidental and not intended (although there may be some leeway if the paparazzi acts in a way that is reckless as to whether or not the person they are trying to photograph is frightened or intimidated).

Rather than criminal harassment, it is more likely that media may be issued with civil restraining orders under the Summary Offences Act 1981.

Restraining orders can be granted if the person taking the photographs is engaging in behaviour that amounts to harassment, and causes the person who has applied for the restraining order enough distress to convince a judge that the order should be made.

Restraining orders would be made against a particular person, and the applicant would have to show that there has been a pattern of behaviour by the person which has amounted to harassment.

Conclusion
Given New Zealand's open culture and lack of many true "A-list" celebrities, the battle between paparazzi and celebrities that takes place in other parts of the world has not yet gained much of a foothold here.

Accordingly, it is not yet clear how the New Zealand courts would view the use of telephoto lenses to take pictures of celebrities (or royals) in compromising positions. However, it seems it would be open to a celebrity to bring a case before the courts for invasion of privacy in such circumstances.

The issue is where the balance lies between privacy and the public's right to know interesting information, and what, in fact, can be described as "news" or "in the public interest".

The question for media and paparazzi will be how much risk they are prepared to take in order to get the potential benefit of publishing the world-exclusive picture.

It seems in the case of Closer magazine in France, whatever sanctions they incur may be worth the exclusive of publishing and distributing those compromising photos of the future Queen of England with her top off.

Kristin Bradley is a solicitor at Bell Gully