When photographs of Prince Harry enjoying a wild night out in Las Vegas appeared online on 22 August, very few people were shocked or surprised. After all, HRH is hardly a stranger to partying or the attentions of pretty women. The media was asked by Prince Charles' spokesman at Clarence House to respect his privacy, but did he deserve it?
The naked photos were there for anyone with an internet connection to see on the Hollywood gossip site TMZ (previously known for publishing such public interest scoops as photographs of Rihanna's injuries at the hands of Chris Brown and Michael Jackson's corpse). The British newspapers had to decide what to do.
There was a tabloid story of sorts in the photos' existence, and questions to ask Harry's royal protection officers, but did the actual photos need to be published? For Trinity Mirror, the owner of the Daily Mirror, the answer was no. Trinity Mirror editors believed publication of the pictures would be in "clear breach" of the Press Complaints Commission's editors' code of practice on privacy.
Since the hacking scandal erupted in July last year, the issue of privacy has been hotly debated. Much has been made of the ability of newspaper proprietors to opt out of the current self-regulatory framework. Yet, despite not being a member of the PCC, Richard Desmond's Northern & Shell also decided not to publish the photographs in its Express and Star newspapers.
Initially, News International responded to the conundrum with a mocked-up photograph starring a male Sun journalist with a female intern (thus raising a separate set of moral issues). After a change of heart, The Sun printed one of the real photos on its front page the next day, complete with a "Souvenir Printed Edition" badge.
Explaining the decision, David Dinsmore, The Sun's managing editor, said: "The issue is about the freedom of the press: the ludicrous situation where a picture can be seen by hundreds of millions of people around the world on the internet but can't be seen in the nation's favourite paper read by eight million people every day."
As Campaign went to press, the PCC had received more than 3,600 complaints but has yet to confirm whether it will take any action. Clarence House does not appear to have complained. Although it is unusual for the PCC to investigate a case without a complaint from the story's subject, the PCC could yet reprimand The Sun.
1. The newspaper industry has been subject to self-regulation since 1953, when the voluntary Press Council was set up to maintain ethical standards and promote press freedom. The PCC was established in 1991. All members of the body voluntarily sign up to its editors' code of practice, which touches on a number of issues around privacy.
2. Most relevant in this case is that editors are expected to justify intrusions into an individual's private life without consent. Crucially, the code states: "It is unacceptable to photograph individuals in private places (places where there is a 'reasonable expectation of privacy') without their consent."
3. In addition to the PCC code, all newspapers in the UK are beholden to the European Convention on Human Rights, enshrined in British law in the Human Rights Act. Article 8 of both states: "Everyone has the right to respect for his private and family life, his home and his correspondence."
4. In 2002, Jamie Theakston, then a children's TV presenter, failed in his bid to prevent Trinity Mirror's Sunday People from publishing a story about him visiting a brothel. However, the judge ruled the People could not use the photos. Crucially for the Harry images, Mark Stephens, a partner at the law firm Finers Stephens Innocent, says the Theakston ruling means there has to be a "separate and distinct public interest in showing the pictures which warrants the greater intrusion".
5. But will Prince Harry (or his family) complain? The royal family does not like litigation. Stephens says they have only taken action twice in recent years: after the Mirror published photos of Harry's mother, Princess Diana, in the gym and when The Sun published the Queen's Speech a day early. A spokeswoman for Clarence House declined to comment on whether it planned to make a formal complaint.
WHAT IT MEANS FOR ...
- Campaign could not find any advertisers or media agencies that were planning to change the way they traded with The Sun because it published the photos. But some buyers expressed surprise that, amid the Leveson inquiry and the impending criminal trial of former NI executives, the paper would choose to do so.
- When journalists at News of the World were accused of hacking the phone of Milly Dowler last year, lots of advertisers claimed they had pulled out of the paper. Industry sources suggest the brands that were most vocal in their opposition found future trading negotiations with NI more difficult.
- NI says The Sun sold an additional 120,000-plus copies the day it published the photos. At 40p a paper, an additional 120,000 would bring in £48,000 of extra income, not to mention lots of PR value and a boost to its August Audit Bureau of Circulations figures.
- An NI spokeswoman denies its decision to publish was motivated by anything other than press freedom. Yet Stephens says Sun execs are likely to have calculated that, even if the royal family did sue, the maximum damages historically awarded in a privacy case was £60,000 (to Max Mosley).
- Already under pressure after revelations from the Leveson inquiry, the PCC denied accusations that it had told newspapers not to publish the Harry pictures. A PCC spokesman said it simply issued an advisory notice.
- When Lord Justice Leveson's report comes out later this year, it is expected to level a range of criticisms at the newspaper industry, including that self-regulation has failed. The industry is expected to fight statutory regulation, but the PCC could be replaced by another body.