The scandalous publication of Kate Middleton's unsuspecting breasts has created three case studies surrounding the right to publish royal private parts, and private is the key word here. Publishers in France, Ireland and Italy are facing legal threats from Buckingham Palace following Prince William and Kate's decision to sue the French magazine Closer for publishing several topless photos of a sunbathing Kate. The scandal began in France where the paparazzo snapped photos of the Dutchess of Cambridge on a private estate in Provence. After finding no takers in the British press, the photographer licensed the photos first to Closer then to the Irish Daily Star and most recently to Italian magazine Chi, which is publishing a 26-page spread of Kate's outdoor exploits. In each country, the legal system and culture play a role in bringing pressure to bear on these prurient publishers. Here's a breakdown of the forces at play:
Legal pressure. France has some of the strictest privacy laws in the world and it's the first place where the legal battle will play out. Prince William and Kate have vowed to sue Closer, which is owned by the Berlusconi family's Arnoldo Montadori Editore Spa. According to legal experts, the Royal family's case is a slam dunk. "There is little doubt about the legal position: the publication of topless photographs of the Duchess of Cambridge by Closer magazine in France was illegal," writes Legal Week. "The taking and publishing of the photographs constituted a criminal offence and a civil wrong," given that they occurred on private property. The French Criminal Code criminalizes invasions of privacy under Article 226-1:
A penalty of one year’s imprisonment and a fine of €45,000 is incurred for any wilful violation of the intimacy of the private life of other persons by resorting to any means of:
1° intercepting, recording or transmitting words uttered in confidential or private circumstances, without the consent of their speaker;
2° taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned.
Where the offences referred to by the present article were performed in the sight and with the knowledge of the persons concerned without their objection, although they were in a position to do so, their consent is presumed”.
In sum, the pros over at Legal Week expect a find of around €30,000. But that's not all. There is also civil liability that provides that "Everyone has the right to respect for his private life." Damages in such cases are usually "modest." Of course, the publisher surely knew full well of the consequences of publishing the photographs, so why did it go head? It's possible that a rational cost/benefit analysis favors going ahead with it, argue Legal Week. The publisher "made a cynical calculation that the likely penalties were going to be much less than the financial rewards. Weighing worldwide publicity against potential penalties of a few tens of thousands of euros, it was no contest." But will the magazine pay a price in the realm of societal disgust?
Social pressure. That's a tough question. France's freedom of the press is not (relatively speaking) as absolutist as in the United States where the media has greater latitude to cover public figures. That fact loomed large during the Dominique Strauss-Kahn rape case, in which French society was scandalized by the perp walk photographs taken of the former IMF chief in New York City. Historically, the French press has self-censored its coverage of the royals as well, most prominently following the death in Paris of Diana Princess of Wales in Paris 15 years ago. So culturally speaking, there's an impediment but it wasn't strong enough to prevent Closer from going forward, clearly. How about in Ireland?
Legal pressure. Ireland does not have the same kind of punitive laws that exist in France and England, but that soon may change. According to the Mirror, Irish Minister for Justice Alan Shatter is introducing legislation to enforce privacy laws following the Irish Daily Star's decision to publish the photos. "It is clear that some sections of the print media are either unable or unwilling in their reportage to distinguish between prurient interest and the public interest," he said. "The Government will reopen privacy legislation proposed several years ago and subsequently abandoned," reports the Mirror. The royals have not said if they will pursue legal action against the Star. Interestingly, the societal pressure may level the most punishing blow for the newspaper.
Social pressure. The Telegraph reports that the Irish Daily Star faces closure following the publication of the photographs, and it has nothing to do with the law. Publishing magnate Richard Desmond, whose company Northern & Shell owns the paper in partnership with INM, wants out. “I am very angry at the decision to publish these photographs and am taking immediate steps to close down the joint venture," he said. "The decision to publish these pictures has no justification whatever and Northern & Shell condemns it in the strongest possible terms.” Still, not everyone agrees his move to shutter the paper is the right call. The National Union of Journalists has issued a statement calling the decision "over the top."
Legal pressure. Because Italian magazine Chi was not first to publish the photos, its editor believes it's in a legal safe zone. "Chi editor Alfonso Signorini told The Associated Press over the weekend that he didn't fear legal action since the photos were already in the public domain following Closer's publication." Below, you can watch the editor defend his decision:
Social pressure. As for public scrutiny over the decision in Italy, it appears to be minimal. As The Hollywood Reporter's Eric Lyman reports, the response to Berlusconi's involvement has been muted.
The Italian media collectively shrugged on news that a French tabloid, owned by Italian media tycoon and former prime minister Silvio Berlusconi, was facing legal action... Several news sites published the news, in which the magazine Closer -- part of the massive media holdings owned by Berlusconi’s holding company Fininvest -- published topless photos of Kate Middleton. But the news of the day featuring Berlusconi involved his plans to run for prime minister again next year and his handling of the AC Milan pro soccer team he owns.
Il Giornale, a daily newspaper owned by Berlusconi, ran a short piece that said the 75-year-old leader had been unaware of the decision to run the raunchy photos. Corriere della Sera, the country’s largest daily, called the news “embarrassing” but ran only a small story on the topic, buried on the newspaper’s home page below stories about a police chase in Milan and a story about Pope Benedict XVI's arrival in Beirut.
What can we say? This is the same place that was for a long time happy to have Silvio "Bunga Bunga" Berlusconi as its elected leader.
This article is from the archive of our partner The Wire.
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