Privacy across the pond
“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that statement was made with actual malice.”
—Justice William Brennan
“In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct.”
—Justice Arthur Goldberg, N.Y. Times v. Sullivan, 1964
In 2011 the world was captivated by the wedding of Prince William and Princess Kate. Various sources estimated the worldwide television audience to be in excess of one billion viewers for the nuptials of the future King and Queen of the United Kingdom. This past week, however, a very different kind of attention was drawn to the Princess as a result of the publication of revealing pictures of her sunbathing topless while on vacation in France.
The pictures were taken while the Prince and Princess were at a private estate. Subsequent court proceedings suggested that the photos were taken from one-third or one-half mile away using a high powered lens. First published in a French magazine, the photos were quickly reprinted in Ireland and then additional photos were published in Italy. The Royal Family immediately moved to quash further publication, but in a digital world, the photographic genie is nearly impossible to put back in the bottle.
Fortunately for the royal family, the French have an incredibly strict set of privacy regulations, with The Guardian of London calling them, “among the most robust in the world.” Unlike the U.S. and U.K., French law prohibits the use of a person’s image without their consent and, in so doing, strictly limits the celebrity photographers generally known as paparazzi.
It is not surprising, therefore, that on Tuesday of this week a French court ordered that the magazine in question cease publication of the photos immediately and turn over any unpublished photos within 24 hours. A criminal investigation will follow and both the photographer who took the photographs and the publisher of the magazine that ran them might face prison time. Monetary penalties are not so steep, however, with the magazine facing a fine of only $13,000 for each reprinting of the pictures.
While weaker privacy laws in the United Kingdom would have made it harder for the royals to prevail, the sense of decorum surrounding the Duchess of Cambridge has so far led to British tabloids staying away from reprinting the pictures. Had the images been generated on a royal trip to the United States, however, the end result would likely have been very, very different.
American privacy laws, when applied to the dissemination of material by newspapers, magazines, television stations and internet sites are governed by First Amendment protections. They arise from a 225 year tradition of protecting the right of the media to disseminate information about people who are in the public eye. Indeed, the right of the media to report on government officials is among the most cherished and basic freedoms underpinning our Constitutional system.
Neil Richards, Professor of Law at Washington University in St. Louis notes that, “Publication of nude photographs by the press can be in very poor taste, and can cause real emotional harm. But American courts have by and large decided that the publication of the truth about celebrities is protected free speech.” Nowhere did the United States Supreme Court make that more clear than in the 1964 case, New York Times v. Sullivan.
In Sullivan, a government official in Alabama sued the New York Times for running an advertisement that made claims about the government’s reaction to civil right protests. Some of the statements in the ad were true, but others were false. But when it came to public figures, the Supreme Court decided that the absolute truth didn’t matter. That’s because it had long been decided that, “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the breathing space that they need to survive.”
As such, in the United States statements, editorials, cartoons and photographs of persons who are in the public eye — government officials, celebrities, sports figures — are protected unless there is a showing of “actual malice.” Or, as the Supreme court put it, “a knowledge that it was false or reckless disregard of whether it was false or not.” Whether something is in bad taste has no bearing in that review.
The royal family’s victory in a French court would be very difficult to repeat in the United States. Even that French victory is likely hollow as the pictures in question have entered the digital consciousness — a realm from which they will almost certainly never be purged.
David Hejmanowski is a Magistrate and Court Administrator of the Delaware County Juvenile Court and a former Assistant Prosecuting Attorney.