Peter A Clarke

In 2012 a paparazzi used a zoom lens to take photographs of a relaxing, topless, Duchess of Cambridge while she was sunbathing on a terrace inside a private property during a holiday in France.  The resulting photographs were hawked around the various publications.  British papers turned down the offer but the French magazine Closer did not. It published the shots and the Duchess, with her husband, filed a criminal complaint for invasion of privacy and successfully obtained an injunction against the further use of the photographs. The Duchess also commenced civil action alleging an invasion of privacy.

Overnight the Duchess of Cambridge was successful with a French court ordering  Closer to pay €100,000 and the publications editor and owner to each pay a fine of €45,000.  Two photographers were also ordered to pay €10,000 and two others were given suspended fines. While the award is significant the Duchess’ lawyers sought €1,600,000.

The decision breaks little new ground in French law, though the size of the award is significantly larger than previous French privacy case,  and will have no real direct impact on the development of UK or Australian law in this area.  It does highlight the gap in Australian law protecting personal privacy. In Australia the protections are based in equity with a claim of misuse of private information.  This is a position developed by the UK courts and from which they have moved, now having a fully formed tort.  The Australian law on privacy protections is in limbo with the courts unlikely to recognise a stand alone tort (of invasion of privacy or whatever nomenclature is adopted) and the legislature refusing to legislate such a tort (notwithstanding many consistent recommendations to do so).

The story has been reported in the Independent, the Guardian, the Daily Mail, the BBC, the Fairfax press and even Vogue is delving into hard news (it is Kate after all).

The BBC coverage provides:

The Duke and Duchess of Cambridge have been awarded 100,000 euros (£92,000) in damages after a French magazine printed topless pictures of Catherine.

A French court ruled the images used by Closer – taken as the couple holidayed in Provence five years ago – had been an invasion of their privacy.

The royals will donate the funds to charity, the BBC understands.

The judge fined Closer magazine’s editor and owner 45,000 euros – the maximum amount allowed.

The damages – 50,000 euros to each royal – fall short of the 1.6 million euros (£1.5m) sought by lawyers for Prince William and Catherine.

‘Unjustified intrusion’

Long-lens images of Catherine sunbathing on a terrace were published on the front and inside pages of the Closer publication – which is separate to the UK’s Closer magazine – in 2012.

Presiding judge Florence Lasserre-Jeannin also instructed regional newspaper La Provence, which printed images of the duchess in her swimwear, to pay 3,000 euros in damages during the hearing at the Tribunal de Grande Instance de Nanterre.

A statement from Kensington Palace said: “This incident was a serious breach of privacy, and their Royal Highnesses felt it essential to pursue all legal remedies.

“They wished to make the point strongly that this kind of unjustified intrusion should not happen.”

The judgement follows the trial of six people, including photographers and the former editor of Closer, which began in May.

All six defendants were convicted of charges relating to the taking and publication of the images.

A statement from Prince William was read at the trial in May.

The duke said: “The clandestine way in which these photographs were taken was particularly shocking to us as it breached our privacy.”

The invasion of privacy was “all the more painful” given the experience of his mother, Princess Diana, with the paparazzi, he added.

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‘Not ground-breaking’

By BBC Paris Correspondent Hugh Schofield

The guilty verdict was certainly not a surprise. It’s almost a game these magazine play. They get the fines but they think it’s worth it – they get the extra sales from the photographs they publish.

What was interesting about this case was that the royal couple and their lawyers here were pushing for a much, much larger amount in damages. They were, in effect, saying the royal couple is different.

There was an attempt to turn this into a different kind of affair, one in which there would be almost punitive damages awarded against Closer magazine, damages that would really inhibit and deter it from doing a similar sort of thing in the future.

In the end, though the damages are substantial, they are not really out of line with similar cases in the past.

They aren’t precedent-setting kind of damages which would really act as a deterrent to Closer magazine and others like it in the future.

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Ernesto Mauri, 70, chief executive of publishing group Mondadori, which produces Closer, and Laurence Pieau, 51, editor of the magazine in France, were fined 45,000 euros each for their role in the invasion of privacy.

Agency photographers Cyril Moreau and Dominique Jacovides, who had denied taking the topless photographs, were told to each pay 10,000 euros.

Marc Auburtin, 57, who was La Provence’s publishing director at the time, and the paper’s photographer, Valerie Suau, 53, were each given suspended fines.

The duke and duchess launched their legal proceedings in 2012 and a court in Paris banned Closer from printing any further images.

The Sydney Morning Herald’s coverage was also quite good providing:

A French court has awarded the Duke and Duchess of Cambridge 103,000 euros ($150,000) in damages over the publication of photos from a 2012 holiday – including shots of Kate topless.

The fine was among the highest awarded for invasion of privacy in a French court, though it was significantly less than the couple’s ambit claim when they fought the case.

They had argued that the family’s status and history required a “very significant” fine, as they were “not ordinary victims”.

William and Kate had sued the French magazine Closer for 1.5 million euros ($2.2 million) over the images of the couple relaxing at a remote private chateau in Provence owned by the Earl of Snowdon.

Closer‘s editor Laurence Pieau and publishing director Ernesto Mauri were each fined 45,000 euros, and two agency photographers Cyril Moreau and Dominique Jacovides – who had denied taking the shots – were each fined 10,000 euros, of which 5000 were suspended.

They were all convicted of invasion of privacy or complicity in an invasion of privacy – but they avoided possible one-year jail terms.

At the trial at Nanterre Criminal Court in May, William said in a letter read to the court that the publication of the photos was “particularly painful, because they remind us of the harassment at the death of Princess Diana, twenty years ago, in a pursuit by paparazzi”.

“In September 2012, my wife and I thought that we could go to France for a few days in a secluded villa owned by a member of my family, and thus enjoy our privacy,” the duke said. “We know France and the French and we know that they are, in principle, respectful of private life, including that of their guests. The clandestine way in which these photographs were taken was particularly shocking to us as it breached our privacy.”

The photographs, of grainy quality after their journey down a long lens, were presented with lascivious pleasure by Closer magazine, which editorialised on Kate “offering her chest to the soft caress of the Provence sun” and described her as “a wife comfortable in her body who has nothing to hide from her husband”.

As soon as they were published, the couple won an immediate injunction preventing the photos being used more widely. However, other European magazines also republished the shots.

Lawyers for the magazine had argued they had a “legitimate interest” in publishing the images, which they said presented the couple in a “positive” light.

They had also attacked what they called “Anglo-Saxon reasoning” behind the punitive damages claim.

Previous awards in French privacy cases have been smaller: Julie Gayet, the partner of former president Francois Hollande, won 15,000 euros from Closer over a photograph of the couple.

William and Kate will also receive 3000 euros in damages from the regional daily La Provence, which a week earlier in 2012 had published a picture featuring the duchess in a swimsuit, but not topless, taken at the same chateau.

The prosecutor had argued that the picture in La Provence, though it was not indecent or vulgar, was still an invasion of privacy.

The photographer for La Provence had expressed bemusement at the trial, a French TV station reported, saying “it was an honour to have them in the region. They were not naked, (the photo) was good – not shocking.”

Meanwhile, Prince Harry’s girlfriend Meghan Markle stars on the cover of the latest Vanity Fair published this week, talking about her love for the prince and the “challenges” their relationship posed.

“It comes in waves – some days it can feel more challenging than others,” she told the magazine.

“Right out of the gate it was surprising the way things changed. But I still have this support system all around me, and, of course, my boyfriend’s support.”

She did not sound bothered by the media frenzy around the pair.

“We were very quietly dating for about six months before it became news, and I was working during that whole time, and the only thing that changed was people’s perception.

“I’m sure there will be a time when we will have to come forward and present ourselves and have stories to tell, but I hope what people will understand is that this is our time. This is for us. It’s part of what makes it so special, that it’s just ours.”

She did not read the British press, she said, instead she relied on the opinion of those close to her and “the rest is noise”.

Her relaxed attitude contrasts to the prince’s – Kensington Palace had issued a statement complaining of “a wave of abuse and harassment” directed at Markle, saying “Prince Harry is worried about Ms Markle’s safety and is deeply disappointed that he has not been able to protect her.”