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.

Posted by Dave Hejmanowski on Sep 20 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.