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Follow-up question to Is it legal to photograph someone in public after they explicitly withhold consent?

Kate Middleton has in the past been followed by paparazzi everywhere. She reacted to that by threatening legal action. Given that there is absolutely no law that prohibits people from photographing her once she's in public, what is the basis for the legal action she's threatened?

Example from the Wikipedia page:

In April 2006, her lawyers issued new warnings to the Daily Mail, the Daily Star and The Sun and the picture agencies Big Pictures and Matrix after they published photographs of Middleton on a bus during a shopping trip.

Based on the answer to the linked question, this looks completely legal - in which case presumably her lawyers would not have agreed to act on her behalf.

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    Lest you confuse the US (1st amendment) for the UK (no 1st amendment)
    – Richard
    Sep 22, 2023 at 19:17
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    What jurisdiction are you asking about? The question you linked (or at least the one it's closed as a duplicate of) is asking about the United States, but the publications you mentioned in your example are all UK publications. The First Amendment to the Constitution of the United States (which protects freedom of expression and the press, among other things) generally does not apply to the United Kingdom.
    – reirab
    Sep 22, 2023 at 21:25

2 Answers 2

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Given that there is absolutely no law that prohibits people from photographing her once she's in public,

But there is.

The conduct of paparazzi photographers might amount to harrassment under the Protection from Harrassment Act 1997, which gives a statutory cause of action. That is in addition to any other possible claims regarding breach of confidence, nuisance, misuse of private information, invasion of privacy, trespass, etc., which have tended to arise in similar situations (though the question here only posits that photos were taken in public places).

Even though the Princess of Wales is famous, she has the benefit of Article 8 of the European Convention on Human Rights, which secures "the right to respect for [her] private and family life, [her] home and [her] correspondence." (A paparazzo is not a public authority, but a court being asked to adjudicate a civil claim is.) In Von Hannover v Germany 59320/00 [2004] ECHR 294, the European Court ruled in favour of Princess Caroline of Monaco, regarding magazine coverage of her daily activities like shopping. The Bundesverfassungsgericht in Germany had said that as a figure of contemporary society who was not in a secluded place, her right to privacy did not defeat the right of freedom of the press under Article 10. On the contrary, the ECtHR said that:

the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public.

They said that this situation was different from intrusion into the life of a politician, where there could be genuine public interest in their private conduct; although Princess Caroline was a senior member of Monaco's royal family, who sometimes represented that family at charitable or cultural events, she did not hold any office of state. The "climate of continual harrassment" by paparazzi was part of this assessment.

Now, the Princess of Wales is a member of the royal family, but doesn't run the country, and unlike Caroline is not even in the line of succession. If she is just out shopping, then her conduct is not inherently scandalous. (In contrast, Campbell v MGN [2004] UKHL 22 engaged questions of "where a public figure chooses to present a false image and make untrue pronouncements about his or her life", in that instance using drugs while claiming to not use them.) Although it's not taking place in a private location, von Hannover shows that consideration is not enough in itself to exclude the application of her Article 8 rights.

There is still a balancing exercise involved, since (quoting Lord Mance's summary from PJS v NGN [2016] UKSC 26 at para 20)

(i) neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied.

In other words, while the outcome of any suit would depend on the actual facts, the Princess's Article 8 rights are quite high (even though she's a celebrity in a public place), and the protection afforded to mere celebrity gossip coverage under Article 10 is quite low.

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    Does this mean she only has a case if it's the same member of the press following her around (or at least a journalist from the same newspaper)?
    – Allure
    Sep 24, 2023 at 8:18
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    @Allure that would be easily sidestepped by the newspaper offering money for pictures from freelancers and ensuring the freelancers they bought from just happen to be always different people taking each of the photos but still covering the subject for an entire day. In a way, that's why the celebrities are suing the newspaper, it doesn't matter where the actual photos came from, they might even come from CCTV footage of the facility.
    – Martheen
    Sep 24, 2023 at 9:59
  • @Allure See e.g. pressgazette.co.uk/archive-content/… for the kind of injunction that could be made against a group of unknown people - this was "served" by posting copies outside her house, where any photographers would see them
    – alexg
    Sep 24, 2023 at 19:46
  • ("her" = Lily Allen in that example, sorry if anyone thought it was someone else)
    – alexg
    Sep 25, 2023 at 9:52
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Like the Wikipedia article says, Middleton claimed "harassment" and "invasion of privacy", which seem to be reasonable claims in the circumstances described. In some cases she either won in court or agreed settlements with the offenders, so it seems the law was on her side in those cases.

When people say it is legal to photograph someone in public after they explicitly withhold consent, I imagine they are thinking of single events. They haven't included (or considered) the subject being constantly followed or chased by photographers, or photographed every day in private settings from long distance.

I doubt they believe the photographer has carte blanche on the grounds he is photographing; that because he has a camera he cannot be held to account for behaviour that constitutes harassment or stalking of the subject in English law, intrusion of privacy in French law, or a breach of the subject's right to respect for private and family life in UK or French law.

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    In the US on the other hand, so long as the photographer is not actually interfering in the subject's activities there is, in fact, an unfettered right to take such pictures. That is, someone could be followed around a grocery store but leading and blocking them would be different. In the US people simply have no legally-recognized privacy interest in activities exposed to the public. Sep 22, 2023 at 19:48
  • @SoronelHaetir Yes, but according to Porat v. Lincoln Towers Community Association, 2005 the photography has to have a communicative purpose to be protected by the 1st amendment. Publication in a gossip magazine should be enough to clear that bar though.
    – jkej
    Sep 23, 2023 at 0:36
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    @SoronelHaetir they may have an unfettered right to take pictures, but they do not have an unfettered right to follow someone else around for that purpose. For example, following a person in a public place is one element of harassment in New York.
    – phoog
    Sep 24, 2023 at 8:13
  • @phoog buying rope and zip ties is an element of kidnapping, but it's completely legal to go to home Depot and buy these things. What matters is if all the elements together violate a statute, which following a public figure around in public places to take photos does not. Is be surprised if there was even a single successful prosecution for such a thing.
    – eps
    Sep 24, 2023 at 16:07
  • @SoronelHaetir The USA is, while not unique, at least special in this regard. In many countries (including the EU), you can not just walk up to someone and make a picture of them (without asking their permission, perhaps retroactively). The press is free to report on whatever is in the public interest to be reported on. You buying groceries is not in the public interest to be reported on, so a photographer taking pictures of you there would be infringing on your privacy rights.
    – DevSolar
    Sep 25, 2023 at 12:26

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