Why The Sun may see Prince Harry photo fallout

The photographs of Prince Harry's naked shenanigans in Las Vegas have been widely published in the US press and abroad. As a result, they can be seen anywhere there's an Internet connection. 

But that still may not keep The Sun out of legal hot water, after the British tabloid printed the photos in its own pages last night.

When the photographs were first published earlier this week by Los Angeles-based gossip website TMZ.com, the royal palace quickly confirmed that the pictures did indeed show Prince Harry. But they also warned the Press Complaints Commission that they would consider any publication of the pictures an intrusion upon the prince's privacy.  As a result, Fleet Street and England's broadcasters – even while writing up the Las Vegas escapade with typical royal-watching bemusement and enthusiasm – have toed the line and not shown the photos themselves. 

But The Sun broke ranks today, running one of the candids under the headline "Heir it is!", arguing that the publication of the photos was a matter of public interest in England. "By yesterday, the photographs were indisputably in the public domain everywhere in the world," The Sun's editors explained in an article accompanying the photos.

That generated a legitimate public debate about the behaviour of the man who is third in line to the throne and increasingly taking on official duties, as he did most recently at the Olympics’ closing ceremony. ...

But there is a clear public interest in publishing the Harry pictures, in order for the debate around them to be fully informed. The photos have potential implications for the Prince’s image representing Britain around the world.

There are questions over his security during the Las Vegas holiday. Questions as to whether his position in the Army might be affected.

The Guardian reports that Louise Mensch, a Conservative member of Parliament, made a similar argument, saying that "There is a clear, demonstrable public interest: the royal family receives money from the civil list; Prince Harry in inviting people to his room [had] the expectation of privacy so there's questions of judgment and questions of security."

But media lawyer Mark Stephens told the BBC that such arguments don't fly. "There’s absolutely no public interest" in seeing the photo itself.

Under English law, Mr. Stephens said, there is clear legal precedent that "if I can explain to you that there is a picture of the prince bare buck naked in a Las Vegas hotel room... unless there is some compelling reason for you to actually see that picture ... the media cannot publish the picture."

The problem, he said, is that the photos are both very intrusive to the prince's privacy and they convey no additional information needed to understand the situation.

"We know that he is bare buck naked, what more do you want to know?" he asked rhetorically. "You don’t need to see the picture."

When the BBC interviewer suggested that the photos raised issues of the royals' public funding and security, Mr. Stephens replied that "You can deal with all of those things, if indeed they are public interest … by telling me what you’ve just told me," meaning that Harry appeared in the photo naked. "You don’t need to see the picture."

Such reasoning suggests that the palace's prompt acknowledgement that the photos pictured Harry was a way to remove them quickly from the public's view. Had Harry's identity been up for debate, the press would have a strong legal argument that the public needed to see the photos to determine whether the prince was indeed pictured.  By acknowledging that it was Harry, the palace headed off such arguments.

Some argue that the ubiquity of the photographs abroad and online may make the royals' efforts to dissuade their publication seem silly. The Sun's managing editor David Dinsmore called the situation "ludicrous," and Dominic Ponsford of the Press Gazette, a British journalistic trade magazine, wrote that "whether the pictures can now be considered private after being viewed so widely is debateable."

But in a legal sense, the photos' ready availability elsewhere is not likely to affect whether their publication is an invasion of Harry's privacy. Rather, it would likely only affect what damages that The Sun might be required to pay if found liable. By publishing photos already so widely seen, The Sun could argue that their publication's relative harm to the prince was minimal.