Harry’s Bottom and the Right to Privacy

Today’s big argument is said to be about privacy and the public interest. I think there must be more to it that that. Most commentators seem to be going round in circles.

Prince Harry, currently third in line to the throne, went to a hotel room and took his clothes off in the presence of a bunch of other people. One of his companions (or maybe several) took photos and made them available to the press. By Wednesday of this week, the photos were accessible on various overseas websites, but the British press declined to publish them. On Thursday night, The Sun newspaper decided to break ranks. It put one of the photos on the front page of its Friday edition and all hell broke loose.

The question has moved on. Can a photo still be private once it has become highly public?

The Editors’ Code says it is unacceptable to photograph individuals in private places without their consent. This was undoubtedly a private place. (I’m referring to the hotel bedroom, not Harry’s crown jewels, although they are a private place too.)

The only exception permitted by the Code is where there is a public interest in breaching the normal rule. For these purposes, the “public interest” does not mean anything the public is interested in. It means (because the Code explains it this way) things like exposing crime, protecting public safety and so on.

The Sun argues that “there is a clear public interest in publishing the Harry pictures, in order for the debate around them to be fully informed.” That is just circular: it is effectively arguing that it is in the public interest to see the photos so that we can debate whether we should see them.

The Sun’s argument continues, rather pathetically, that questions arise over Harry’s security in Las Vegas. The photos don’t help with that, because the photos don’t show where his protection officers were at the time. (There has been no suggestion that the naked girl in the photos was assigned to protect Harry, but if she was, she seems to be standing in the wrong place.)

Critics of The Sun’s decision say there is no public interest in seeing these photos. I am inclined to agree with that. But it’s simply not good enough. The photos are widely available on the internet. Not on some obscure site that one might find if one was lucky or really clever with a search engine. The photos are on Time magazine and USA Today, with datelines suggesting they have been there since Wednesday (ie two days before The Sun published). Not only that, pretty much all the news media have reported the name of the Hollywood site which initially exposed the pictures (see Postscript below) – many of the media helpfully providing a direct link to the site (or unhelpfully, depending on your point of view).

The question has moved on. The events may have been private when they occurred and even when they were photographed. But did they lose their privacy once they became publicly available?

Anyone familiar with regulatory policy will recognise an elephant trap here. If we say that privacy in a matter exists only for so long as the matter remains unpublished (or not widely published – whatever that might mean), we create an incentive for photographers to take photos of precisely the sort that the Editors’ Code is clearly trying to prevent. All we have done is impose an initial hurdle that the photos need to be already out there via someone else’s website before our Editors can (re-)publish. That is not good policy-making.

But until editors in overseas territories adopt a similar privacy policy to UK editors, the incentive to take photographs will still exist, at least in relation to people with an international reputation. And unless the Editors’ Code is extended to banning even the mention of the names of sites where such photos can be found, the rule here in the UK is pointless.

In most circumstances, it is no defence to wrongdoing to say that it is widely practised by others, so we might as well do so. Everyone who joined in the riots last summer “because lots of other people were doing it” added to the violence, the damage and the difficulty in bringing matters back under control. It is right that they be punished. But repeating a secret that is no longer a secret (or re-publishing a photo that is electronically accessible to anyone who wants to see it) seems to add nothing to the harm. The harm was done by the initial publishers earlier in the week and by those who reported the site to the wider world.

I don’t like what The Sun has done. But if we are serious about protecting privacy, it is insufficient to blame them for breaking the rule. We need to make the current rule a lot tougher. And that means condemning, equally, all those editors who pointed the British public to the photos (or gave enough information to facilitate a search).

[Postscript: When originally published, this blog included the name of the Hollywood website which first published the photographs of Price Harry. I decided a few days later that the name wasn’t necessary and deleted it from here.]