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Prince George - To Pap or Not to Pap?

19/08/2015 14:17 BST | Updated 18/08/2016 10:59 BST

You've heard the story of the princess and the pea - the delicate princess distressed and discomforted by a tiny vegetable under myriad mattresses? This is the story of the prince and the 'p' - 'p' for paparazzi - distressed and discomforted by a minority of media taking and publishing pictures of him without his consent.

Well, it is in fact Ma and Pa (AKA the Duke and the Duchess of Cambridge) who are distressed and discomforted, and it is Kensington Palace which has voiced this discontent through a public letter, complaining of 'increasingly dangerous' tactics to obtain pictures of the royal toddler.

A letter from Kensington Palace

Mum and Dad say they applaud responsible publishers and 'are pleased also that almost all reputable publications throughout the Commonwealth...and in other major media markets like the United States have adopted a similar position'. That position being not to publish unauthorised pics of their son and his new baby sister. The letter goes on to justify this; 'they know that almost all parents love to share photos of their children and they themselves enjoy doing so. But they know every parent would object to anyone - particularly strangers - taking photos of their children without their permission. Every parent would understand their deep unease at only learning they had been followed and watched days later when photographs emerged'.

That is understandable - especially when we learn what the paps get up to, to snap these pics of the unwitting child. Paparazzi are apparently, hiding out in cars stocked with food and drink, pimped-up with blacked out windows and draped sheets, as if attempting to catch a rare glimpse of a wild and secretive creature; they are burying themselves in sand-dunes on rural beaches like giant, camera toting crabs; they are luring the young boy out into the open with other children to play with, like the child-catcher in Chitty Chitty Bang Bang, for an easier shot.

Protecting privacy - and life and limb

And there's the rub. Because while a camera can shoot, so can a weapon. Wills and Kate are concerned about the invasion of the prince's privacy - who regardless of his future public role, should not have to 'grow up exclusively behind palace gates and in walled gardens' and should be 'free to play in public and semi-public spaces with other children'. But they also are worried about his safety, as the list of extreme tactics used to capture an image of the boy George are, the letter says, reminiscent 'of past surveillance by groups intent on doing more than capturing images'.

And it's not just the safety of the prince that appears at risk here, but the paps themselves.'The worry is that it will not be possible to quickly distinguish between someone taking photos and someone intending to do more immediate harm'. Reading between Kensington Palace's words, if you are stalking the prince and get mistaken for a terrorist or an assassin, it will be on your own head if you mistakenly take a bullet.

What's the law?

The legal position on privacy for kiddywinkies, as opposed to the position voluntarily taken by media organisations, or that sought to be imposed by worried parents, is somewhat murky. In European countries signatories to the European Convention on Human Rights, there will be an actionable invasion of privacy - privacy protected by Article 8 of the Convention - where the subject has a 'reasonable expectation of privacy'; and where there is no countervailing and overriding free speech - protected by Article 10 - argument for the disclosure for example that the information is already in the public domain or contributes to a current debate of general interest.

So, do we have a reasonable expectation of privacy when we are out and about in public? No. Not unless we are doing something intrinsically private. Does a child have a greater right to privacy than an adult? Well... Courts the world over, are generally more protective of the rights of the vulnerable, including children, than those of John Smith or Jane Doe.

The argument for privacy is that, where the boy is only two - even if he will one day be King - what he does now, at home, in public, cannot be anything other than private and should be protected.

The argument for disclosure, is that if he is in public, what he does is for public consumption; and that there is a public interest justification in knowing how he looks, what he is doing, how he is behaving and being looked after, as one day he will be the monarch in Britain thereby fulfilling a very public role.

The Brits make their excuses...

So why is the media in Britain - notorious for being salacious and invasive - voluntarily not buying these pics if countries elsewhere are prepared to do so? The regulatory code of conduct to which many UK media organisations adhere makes special provision for children, including that editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life. So it's likely a combination of the blurry state of the law, a desire to be seen to be abiding by the new voluntary regulator's code, and one suspects a commercial impediment to keep their readers onside by not upsetting the Royal Family, that has persuaded Fleet Street on this side of the Pond to keep the prince and his sister under wraps.

Blowing privacy bubbles?

As a media lawyer specialising in privacy and protecting the private lives of my clients, I have great sympathy for parents wishing to protect their offspring from the media spotlight; I work hard to ensure that the privacy of the children I deal with is properly protected and not open to public scrutiny where it is invasive, harassing and objectionable. But should the law provide specifically for children - the children of royals, the children of celebrities, who will decide? - to be cocooned in a bubble of a very different class of privacy which no one may invade unless particular circumstances arise. And what would those circumstances be? That the child reaches 16, 18? That the child does something newsworthy and if so, who decides what that is? That the parents take their children a public event? Or that the parents take the children to a public event and then authorise the disclosure?

The concern vexing commentators is that this might amount to 'unfettered image rights' for children, as referred to by the Mail Online last year, in a case involving the children of British musician Paul Weller of The Jam fame. He complained - successfully - to the English courts over publication in the Daily Mail and Mail Online of photographs taken of his children on a shopping trip in Los Angeles. Although it was lawful to take the photos in California, the Judge said that the children would still have a reasonable expectation of privacy in the UK in respect of this family day out.

Most of us would agree that activities of the nature described by the Palace's letter, where the child may be put at risk, or where he or she might be distressed and harassed by the flashing of camera lights or the leering too-close face of a snapper, should be off limits. But if photographs are taken when the child is in public, doing nothing private, taken discreetly and without offence, risk or harassment, should they be prohibited?

If there were a pea under my baby's mattress causing him distress, I would take it out - without doubt. So as an advocate of privacy protection, and proud of my credentials as a fiercely-protective British privacy lawyer, would I outlaw photographs of Prince George unless they were authorised by his parents? Mindful of the backlash I might face I have to admit, I am not sure.

But I do know that for the main part, my US cousins love our royal family. And I know that you are equally in love with free speech. So, America, tricky question, but what do you think...?