Topless Kate, naked Harry and the public interest

What a difference a few weeks make.

Back in late August we were informed that The Sun had a sacred journalistic duty to publish naked pictures of a member of the royal family, taken without the subject’s knowledge or consent, and at a time and in a place where they might reasonably have anticipated privacy. Important questions of the public interest were involved, we were told. It was absurd and preposterous that British newspaper readers should be prevented from seeing pictures that they could access online within seconds. The Sun was a noble warrior for British press freedom, seeing off Lord Leveson like he was the Balrog, with a stirring cry of “You! Shall not! Pass!! (to the government a report recommending legislative changes which will impede our ability to invade the privacy of people in the news)”.

Now it’s mid September and naked photos of another member of the royal family have emerged. They were taken without the subject’s knowledge or consent, and at a time and in a place where they might have reasonably anticipated privacy. This time, we are told, there is no question of public interest. It is right and proper that British newspaper readers should be prevented from seeing pictures that they can access online within seconds. The collective editorial corps of our nation are become latter-day knights errant, bravely defending the honour of Our English Rose against those filthy foreigners and their evil, naked-picture-printing wiles.

The level of intellectual incoherence this reveals is startling. If publishing the pictures of Harry was in the public interest then publishing the pictures of Kate is, too. Conversely, if publishing the pictures of Kate is not in the public interest then neither was publishing the pictures of Harry. It really isn’t possible to have it both ways. Let’s go through the arguments.

  • It was suggested that printing the Harry pics was in the public interest because it revealed his security was too lax, and thus his safety was at risk. Well, if a paparazzo could get close enough to take a picture with a telephoto lens, an assassin might have got close enough for a shot with a high-powered rifle. So, that concern is as valid with Kate as it was with Harry.

  • It was suggested that printing the Harry pics was in the public interest because they revealed something about his character, or his judgement, or his fitness to represent the queen. Well, exactly the same is true of Kate – just like Harry, she has been shown to enjoy relaxing by doing on holiday things that would cause eyebrows to be raised if she did them in the midst of her official duties. If you think that getting naked in private for a bet or a dare calls into question Harry’s character, judgement or suitability to deputise for the queen, well Kate’s getting naked in private for an even tan does exactly the same. (For the record, I see nothing wrong with either.)

In fact, the public interest arguments are stronger for publishing the Kate pics than ever they were for publishing the Harry pics. After all, Harry is just ‘the spare heir’, a man who will almost certainly never hold any formal constitutional role. By contrast, Kate will, other things being equal, be crowned Queen Consort one day and she will, most likely, be the mother of the future monarch. The greater significance of her role means that her safety (and hence the quality of her security) is a greater concern; it means the extent to which her lifestyle is separating her from the life experiences of her husband’s and offspring’s subjects matters more; and it means that her ability to carry herself in a manner and style that the public would approve of is more important, too. And if there was genuine concern that the backlash caused by the actions of the News of the World was leading to a chilling climate of fear, and an increasing subservience amongst the press to the wishes of the establishment – well, how much more important for the press to display its fearlessness with regard to a senior royal than a minor one.

My own take on all this hasn’t changed. I think Kate was doing nothing wrong, just as I thought Harry was doing nothing wrong. I think as much with regard to Kate as Harry that, even if there is a public interest in understanding the luxuriousness of a royal lifestyle that is partly funded by the taxpayer, the fact that the royals concerned got naked in the midst of luxury is irrelevant, since their nakedness did not incur extra costs for the taxpayer. I think that there is no genuine public interest (at least insofar as that phrase is generally understood; I make no claims regarding its meaning in law) in publishing the naked pics of Kate, just as there is no genuine public interest (again, in the generally understood sense) in publishing the naked pics of Harry. I strongly suspect that any media organisation that has published or will publish either set of photos is doing so motivated by a mixture of profit motive and prurience.

My personal view is that neither set of photos should be published, and in both situations if existing privacy laws were violated when the pictures were taken then I would welcome a thorough investigation. I do not think, however, that there should be a law forbidding publication of material like this. Both Kate and Harry did get naked, and I do not think the press should be forbidden from reporting on things that have actually happened – in mid September as in late August, I can see no cure to this kind of gratuitous and shameful invasion of privacy that does not risk being worse than the disease.

As I say, my position has not changed in the past few weeks. What I can’t work out is why The Sun‘s has. I understand that the legal situation may be different in both cases, but the whole point of the concept of the public interest (at least as it is generally understood) is that it indemnifies journalists even if they are doing things that would otherwise be illegal or unethical. If journalists are acting in the public interest they get a free pass to do things that otherwise they couldn’t do, so a difference in the legal status of the two sets of photos is strictly speaking irrelevant to the notion of the public interest.

I realise it’s been a difficult week for The Sun, with the report into the Hillsborough disaster reminding lots of people just how much they dislike the paper; reawakening public memories of the Diana-baiting that almost all the media indulged in would not be a good way of getting the public back onside. Still, it seems to me that, if they want their position on the public interest to be intellectually coherent, The Sun are as duty-bound to publish the naked pics of Kate as they were duty-bound to publish the naked pics of Harry.

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