Unlike phone hacking, a criminal offence for investigation by the police, the Prince Harry affaire is stuffed with pertinent issues for Lord Justice Leveson as he ponders the future of press regulation. Two things should strike him forcefully. Firstly, press regulation is becoming more complex by the day as the dislocation grows between the unregulated internet and the regulated media. Secondly, the Press Complaints Commission (PCC) is back in fashion. Why? Because it is needed. As of writing, it has received almost a thousand complaints about the naked Harry photos published in the Sun. In the ensuing debate, commentators have invoked the clauses of the Editors' Code of Practice dealing with privacy, as well as the PCC's rulings over twenty years, an invaluable archive. How foolish it was to launch the Inquiry on the careless assumption that the PCC was not fit for purpose; and that Judge Leveson had no need of an independent member of the Commission, past or present, on his panel of assessors.
The Harry case underlines the eternal tension between privacy and the public's right to know (and see). There will never be, except at the level of broad principle such as is to be found in the Human Rights Act, universal agreement on where the line should be drawn between the private and the public space. That is why a privacy law, which seeks to define for all time the public interest, is a fool's errand. Let us hope that Leveson is not tempted down this path. In a democracy that enshrines in law both freedom of speech and the right to private life, the best that we can aspire to is a case-by-case approach within a framework of principles, continuously refined over time. That is the essence of common law. It is also the essence of the PCC's Code of Practice. It provides very great safeguards for both our privacy and freedom of the press. But it does not, and never will, resolve all the debates around these two great pillars of a democratic society.
I could mount a strong defence of Harry's right to privacy in that Las Vegas hotel suite. Next to your own home, a hotel room is about as private as it gets. But, I could also make a strong argument that, by inviting to his suite a large gaggle of girls, most, if not all, of whom were strangers, Harry compromised his own privacy. There has been undue focus on the photos. They are but the icing - rich and delicious, it has to be said - on the cake. The plain truth is that, photos or no photos, the story of Harry playing strip-billiards would have come out willy-nilly, so to say. Unless each of the guests in his suite had signed an undertaking not to breathe a word about the goings-on, still less take photos, it would have been an unacceptable abridgement of their freedom of expression to stop them blabbing to the media afterwards.
There are legitimate public interest arguments as well. The fact that Harry is a member of the royal family, in part subsidised by the taxpayer, means that his private space is by definition smaller than that of the ordinary citizen. A quite intrusive degree of public scrutiny comes with the job.
Does that include the photos? There have been cases in law and at the PCC where, while the substantive story has not been adjudged intrusive, a photo has. But, that was before the internet, which has changed the game entirely. The question which needs answering is whether a photo ubiquitously available on the unregulated internet gives the regulated mainstream media a right of publication. Such a right cannot surely be automatic. But, if the photo in question is an adornment to a story, which is already justifiably in the public domain, the argument against publishing becomes very hard to sustain.
It is at this point that we reach the limits of the law and regulation. The answer surely lies in the judgement of the editor, as in the case of the Harry photos. It comes down to what is known in the trade as "taste and decency". It is for editors to make a judgement on whether their readers will find the images tasteful or decent. With the Harry photos most British editors did not want to press their luck with their readers or viewers (or Judge Leveson). The Sun took a different view. If its readers did not like seeing the third in line to the throne stark naked on the front page, it will be punished - neither by a judge nor the PCC, but by the readers who decide to switch to another paper.