Who has a right to privacy?

In recent days two young women have received an enormous amount of exposure in magazines and newspapers, though for very different reasons and in very diverse sets of circumstances.

The two women are former Miss World Rosanna Davison and the Duchess of Cambridge, better known as Kate Middleton.

Davison freely chose to be photographed topless for the German edition of Playboy. The availability of those photos was never going to be limited to a German audience. News, especially “celebrity” news, knows no boundaries, and certainly not in today’s hi-tech world.

Given that she is a former Miss World and the daughter of singer/songwriter Chris de Burgh, Davison’s photoshoot for Playboy was always going to make news. In other words, it was inevitable that the cover of the magazine, on which she appeared topless, and other pictures from the inside spread, would be reproduced by many newspapers, including this one.

Davison and her family would have been well aware of the implications of posing topless for Playboy, and of the ripple effect this would have in terms of publicity. Accordingly, she would have no grounds for complaint on discovering that news of her German photoshoot had extended way beyond the borders of that country.

The key factor in Davison’s case is that she entered of her own volition into an arrangement with Playboy whereby she would become the first Irish woman to appear topless on the cover of the famous magazine. This was her choice.

The contrast with the case of the Duchess of Cambridge couldn’t be more marked. She was on holiday with her husband and was sunbathing on the terrace of Chateau d’Autet, near Aix-en-Provence in the south of France, when photographs were surreptitiously taken of her and subsequently published in the French magazine Closer.

This was a private villa, and the duchess had a reasonable expectation of privacy. In the event, that privacy was violated. Even Max Clifford, the PR agent who brokered the deal for Rebecca Loos’ story of her affair with David Beckham, admitted to the BBC at the weekend that this was a clear breach of the right to privacy.

Had Middleton, like so many other young women while holidaying in the south of France, gone sunbathing topless on one of its many public beaches, she would have no privacy defence whatsoever if photos of her had afterwards appeared in magazines or newspapers there or elsewhere. That, though, is not what happened.

Another British commentator summed things up succinctly: “Now there is one, crucial, difference between women who chose to go bare-breasted on public beaches in the South of France and Kate Middleton. The wife to the heir to the throne only disrobed on the terrace of a private house because she wrongly assumed the only witness would be her husband, not the whole of France.”

There is, of course, an entirely separate argument (and it is one that has been employed over the weekend by those unsympathetic to Middleton and to the members of the royal family in general) based on the need for prudence. Put bluntly, this argument goes, “She should have known better — she should not have gone topless on a terrace, private house or no private house.”

This argument was also used in the recent case of Prince Harry and his naked frolicking in Las Vegas. Given the media treatment of their mother, Princess Diana, these two boys, in particular, ought to have known from an early age that care and prudence should be the order of the day from the moment they stepped outside their royal residences. That would apply also to girlfriends or spouses.

It is difficult to quibble with this policy against the background of the history of the media’s relationship with royalty, especially since the Diana Spencer era. Like it or not (and there is some evidence that Diana didn’t always dislike it) the members of the royals and those associated with them through marriage are celebrities, and in a celebrity-obsessed culture are considered fair game by sections of the media.

Nevertheless, a fundamental question remains (and is not sidelined by the pragmatic argument based on prudence), and the question is this: Does celebrity status nullify one’s right to privacy? In other words, if I am a celebrity (even an unwilling or ‘accidental’ one), do I automatically forfeit my right to privacy, irrespective of circumstances?

Monica Lewinsky found herself in this painful situation following the exposure of her White House affair with Bill Clinton with the publication of the Starr Report in Sept 1998. Though Clinton survived an impeachment attempt, she faced a national shaming.

In her memoir, she said one of the most invasive moments of the Starr investigation was when prosecutors retrieved from her home computer love letters she had drafted, but never sent, to the president.

“It was such a violation,” she complained to her biographer Andrew Morton. “It seemed that everyone in America had rights except for Monica Lewinsky. I felt that I wasn’t a citizen of this country anymore.”

In his book The Unwanted Gaze, Jeffrey Rosen, associate professor at the George Washington Law School, is in no doubt that Lewinsky’s right to privacy was violated during the Starr investigation. He warns that the “destruction of privacy” has implications not just for celebrities but for all citizens.

Kate Middleton is unlikely to be feeling quite as forlorn today as Monica Lewinsky did back in 1998, but her sense of hurt that her right to privacy has been violated is probably as acute as that experienced by Lewinsky. It is one thing to do as Rosanna Davison did, and freely agree to be photographed topless for a magazine with an international readership, and quite another to have photos taken of you by stealth in circumstances where you took privacy for granted. And then find those photos appearing in magazines and newspapers.

The right to privacy — famously defined in an article in the Harvard Law Review as far back as 1890 as “the right to be let alone” — is guaranteed by Article 8 of the European Convention on Human Rights (now incorporated into Irish domestic law).

In a case brought before the European Court of Human Rights in Strasbourg in 2005, Princess Caroline of Monaco established that having celebrity status doesn’t nullify that right. It is true — as supermodel Naomi Campbell discovered — that having celebrity status can limit or even diminish that right, but not wipe it out altogether.

The difficulty for Kate Middleton is that, while she will have the European Convention on her side after having decided to sue Closer magazine (and perhaps others) over the topless photos, and while also being able to rely on France’s own strict privacy laws, any fines imposed are likely to be quite small.

One suspects, though, that it isn’t really financial recompense she is seeking — rather a restatement of the principle that the right to privacy is a universal right; one that shields royalty from the “unwanted gaze” as much as ordinary citizens.

As spectators, we may delight in seeing topless photos of Kate Middleton, but if we are indifferent to the circumstances in which those photos were obtained, then our indifference is a contributory factor to a disturbing facet of 21st century society –— what Professor Rosen has called “the destruction of privacy” and all that this entails.