Prince Harry – has the Sun got it right?

24 August 2012. Published by Keith Mathieson, Partner

This blog noted a couple of days ago that clause 3 of the PCC Code requires editors to justify intrusions into an individual’s private life without consent.

The Sun has now sought to justify its publication of the photos of Prince Harry naked on various grounds, one of which is a previous decision of the PCC itself.

The decision in question is here.  It concerned a complaint against Loaded magazine by a young woman whose pictures were included in an article headed “Wanted! The Epic Boobs Girl!”.  Pictures of the woman were readily accessible on the internet.  Her picture was the third most popular result of a Google image search of “boobs”.  There were over 200,000 matching images of her as the “epic boobs girl” and some 1.76m matches relating to her generally.  She had had an internet presence for some four years prior to the use of the images by Loaded. The article in Loaded was not just a random article about her: it was a ‘contextualised’ article which concerned the very fact that she had a massive internet presence.

The fact that the images had been circulating for four years marks an obvious distinction between the Loaded case and Prince Harry’s case.  Nonetheless, the Sun will say (and has said), among ther things, that its article too must be seen in context, that context being the unavailability of the images in UK print media compared with their instant accessibility online.

The PCC’s adjudication contains the following pronouncement:

The Commission did not think that it was possible for it to censure the magazine for commenting on material already given a wide circulation, and which had already been contextualised in the same specific way, by many others.  Although the Code imposes higher standards on the press than exist for material on unregulated sites, the Commission felt that the images were so widely established for it to be untenable for the Commission to rule that it was wrong for the magazine to use them.

Might it not by now be said that the images of Prince Harry were “so widely established” that it was no longer sensible to regard them as truly private?  In Max Mosley’s case against the News of the World, Mr Justice Eady said the court needed to “guard against slipping into the role of King Canute”.  His remark arose in the context of Max Mosley’s (unsuccessful) attempt to get an injunction stopping the News of the World from continuing to publish video footage of a sex party.  Is Prince Harry’s case really so different?

The Inforrm blog says this is all nonsense.  Its rubbishing of the Sun’s defence is here.

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