It will be no consolation to the Royal Family, but the photos of a topless Duchess of Cambridge and a naked Prince Harry have helped point the way to the future regulation of the British press.
The ironies abound. We are told that Lord Justice Leveson is much tempted by statutory underpinning to press regulation. But, the publication of the Kate photos in a French magazine shows that statutory regulation and a privacy law are no panacea. The Cambridges' decision to sue in the French courts may conceivably lead to punitive damages against the magazine Closer, which will deter others. The French authorities may decide that the photographer and the magazine should be criminally prosecuted. But, in either case the precedents are not terrific, which is no doubt why the full majesty of French statute proved no deterrent to the paparazzo in question or to Closer. Meanwhile, the British press, governed by a hybrid regulatory system based on the Press Complaints Commission (PCC), the courts and no privacy law, have refused to touch the photos.
It did not need the looming figure of Leveson to help British editors reach this decision. The Editors' Code of Practice is unambiguously clear:
It is unacceptable to photograph individuals in private places without their consent. Note - Private places are public or private property where there is a reasonable expectation of privacy.
Unlike Prince Harry, who in Las Vegas compromised his own privacy, the Duke and Duchess of Cambridge had a more than reasonable expectation of privacy. British editors would have also been mindful of the fact that our courts can award significant damages in privacy cases, with even larger legal costs, dwarfing the customary penalties given out by the French courts.
There is a further irony. At one stage the Leveson Inquiry was showing a keen interest in the Irish system of press regulation, which has a mix of statutory and self-regulatory elements. But, despite having a privacy clause almost identical to the PCC's, the Press Council of Ireland failed William and Kate in the shape of the undeterred Irish Daily Star, the only newspaper in the British Isles to show some of the photos. So, slice and dice it anyway you like - it has been the much reviled system of British press regulation which did the right thing by William and Kate. A cursory glance at the PCC's website will show that this is a service frequently used by all and sundry, not just the Royals.
But, what about the internet, I hear you cry? Kate's topless photos have shot around the world. Doesn't this make an utter nonsense of press regulation, statutory or non-statutory? And isn't it unfair to put newspapers, already in a dodgy financial state, at a commercial disadvantage by not being able to publish content widely available online? There are no easy answers. But, unless you want to dispense with regulation altogether, to give newspapers an automatic right to reproduce anything they fancy from the internet surely cannot be justified. This is a different argument from that which rightly says that the degree to which photos or stories are available online should be a factor among others in an editor's decision whether to publish.
These are the kinds of issues to which Lord Justice Leveson should be turning his mind. Phone-hacking is an irrelevant distraction. Let's leave it where it belongs: with a series of police investigations costing tens of millions of pounds and absorbing the efforts of almost two hundred officers. The notion that an investigation of this scale should be the business of a press regulator is plain daft. While I admire the ingenuity of some of the elaborate ideas put before Leveson for strengthening regulation, statutory or otherwise, none of them would have spotted phone-hacking, still less nipped it in the bud.
To the contrary, the proliferation of online publishing points to a regulatory system, more, not less, voluntary than now, with a radically different concept of regulation. The absence of Richard Desmond's titles from the PCC system is not that significant when so many influential online publishers are outside it too. Leveson and the industry should not be busting a gut to get Desmond back in again. In an age when it is becoming ever harder to distinguish between what is reliable and what isn't in the flood of online content, we need to think of regulation as a seal of good housekeeping, a mark of quality, that helps the consumer make that distinction. Is it too far-fetched to envisage a PCC Plus (call it what you will), embracing print and online content, where voluntary submission to a Code of Practice and its disciplines is both ethically and commercially advantageous?
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