Sebastian Bowles

¶The accident

¶7.1 At 21:15hrs on Tuesday 13 March 2012, a road traffic accident occurred in a motorway tunnel near Sierre, Switzerland, when a coach returning school children from a skiing trip to their homes in Lommel and Heverlee, Belgium, struck a brick wall. 28 people, including 22 children, lost their lives. It was a devastating tragedy of unimaginable proportions which, beyond the immediate traumatic effect upon families, relatives, friends and everyone touched by it, will have undeniably affected the lives of a very substantial number of people either forever or for a very long time. One of the children killed in the crash was a British boy, Sebastian Bowles, then 11 years of age. Not surprisingly, the facts were extensively reported.

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¶7.2 The story is relevant to the work of the Inquiry not simply because of the way in which it has been reported in the press and the extent to which the press intruded into the grief of the family but also because all this happened while the Inquiry was underway, immediately after evidence about intrusive reporting which was to similar effect had been given. It is also important because it demonstrates the work done by the PCC in circulating member organisations about the concerns of the family; it equally highlights the unreality of a system that depends solely on complaints as a trigger therefore ignoring (and, thus, appearing to condone) potentially significant breaches of the Editors' Code.

¶Press activity

¶7.3 Mr and Mrs Bowles learnt about the accident in the early hours of the following morning and Mr Bowles travelled to Switzerland by the first available flight. That afternoon, he learnt that Sebastian had not survived and he was joined by his wife and their nine year old daughter at the Hotel Des Vignes which had been designated by the Swiss authorities as the centre for parents with children involved in the crash. In the morning of 15 March, with other families, the three of them were taken to the scene of the crash. Although press photographers had not been permitted onto the hotel property (and coaches had been placed in front of the gate to obstruct the view and line of sight), they were photographed from a distance with neither their knowledge nor their consent while they waited under the porch of the hotel to get on the coach that would transport them to the scene. On 16 March, one of these photographs F of the Bowles family (including Sebastian's younger sister, obviously grieving) was published in the Daily Mail.¹¹¹¹¹¹ in order to protect the privacy of the Bowles family to such extent as is possible, and notwithstanding the fact that the information is, at least to a large extent, in the public domain and available, this Report will not publish references to their names, the precise articles or photographs or other family details

¶7.4 16 March saw the publication of a great deal of other material. Prior to the trip, a website had been set up as a blog so that the children on the trip could send messages to their families, sharing their experiences both in writing and by photographs. The website was not password protected and thus was open to anyone but it was obviously intended to provide a mechanism for personal communication. It included a photograph of Sebastian in his skiing outfit; this photograph soon appeared on The Sun website; a representative of Mr Bowles' employers contacted The Sun requesting that no photographs be published and (when told that it had been put on the website) asked that it should not be reproduced in print. However, no attention was paid to this request and the photograph was carried on the front page. In addition, the paper quoted comments and salutations written by Sebastian, clearly intended to be personal but which had formed part of his daily postings to his family.

¶7.5 Besides printing the photograph from outside the Hotel des Vignes, the Daily Mail also published the photograph in skiing clothes and quoted from his blog (described as "an online message to his parents"). The Daily Telegraph also published the blog and the photograph from it. The immediate result was that the website had to be taken down although the record has been preserved for the families.

¶7.6 In the meantime, what was described as 'packs of press' descended on the Bowles family homes in London and Belgium, making enquiries in the area. In Belgium, the problem became sufficiently acute that the police had to be called (and had to return every half hour). Perhaps more understandably, but notwithstanding requests to be left alone (not the least being from the representative of Mr Bowles' employers), British and other journalists politely approached them (once with flowers, sometimes apologetically) but all were then prepared to reduce their requests into writing and did so.

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¶7.7 More was to come. Mr Bowles had a Facebook site which he believes had a privacy setting 'friends only' on which he had published personal, family photographs to share with his family and friends. On 17 March, a number of these photographs appeared on The Mail Online: Mr Bowles had not given permission (not would he have given permission) for what he described as photographs of an "obviously private, personal and family nature" to be published. These photographs caused him to contact Giles Crown, a friend who is also a media lawyer. He spoke to the PCC whose on duty representative was sympathetic and asked him to put his concerns into writing; Mr Crown then wrote to the various editors (copied to the PCC) that afternoon.

¶7.8 The letter made it clear that Mr and Mrs Bowles "sincerely wish to be left to grieve the death of their son in peace without media intrusion" and referred to various clauses of the Editors' Code; particular emphasis could be placed on clauses 3(i) (privacy), 3(iii) (photographs in private places), 5(i) (intrusion into grief), 6(ii) (photographs of children without consent). The letter asked that the privacy of a memorial service be respected and that all private photographs be removed from all media websites; although without limitation, this particularly referred to the taking or publication of photographs of Sebastian's younger sister. The letter suggested that human decency, Article 8 of the European Convention on Human Rights (ECHR) and the PCC Code all demanded that the privacy of the family be respected.

¶7.9 There was no immediate response from the Daily Mail but a follow up email on 18 March (Sunday) elicited a reply on 20 March to the effect that the photographs had been taken from the Facebook page on the Friday without permission but that they were "openly accessible" and that, as the privacy settings had been increased, they would be removed. The photograph taken at the Hotel des Vignes of three members of the Bowles family (notwithstanding that one of them was clearly a child) had not been removed by the time that Mr Crown's statement was circulated to Core Participants. The Daily Mail now explains that the photograph had been obtained from a respectable picture agency (which it believed should have asked itself the correct questions) and that they were not aware that the photograph included Sebastian's sister who was not identified in the caption, although she had, in fact, been cropped out of another photograph.

¶7.10 The Sun similarly referred to the fact that the photograph from the online blog had been distributed by picture agencies and was clearly available which is why they considered it appropriate to publish it. By the time that Mr Crown spoke to the editor of the Daily Telegraph (who knew family and had been a fellow school governor with Mrs Bowles) he was told that he was "late to the party" and that he had held off publishing because he knew Mr Bowles although it was legitimate to publish a photograph that was in the public domain and had been taken in a public place.

¶7.11 It was not only the press in the UK that published material of which complaint is made; Mr Crown has learnt that the Belgian Journalists' Council (Raad) is investigating certain aspects of the reporting of the incident by the Belgian media particularly in relation to "people in vulnerable positions, such as minors and victims and their families" and that "any identification must be weighed against the social importance of reporting".

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¶7.12 Mr Bowles is the first to recognise that the accident was a tragedy of national significance in Belgium and Switzerland; he had no objection to extensive media coverage of it and that Sebastian's nationality provided an obvious focus for the UK press. His objection has been to the personal nature of the coverage and the intrusion.

¶7.13 The way in which this story was reported undeniably raises issues under the Editors' Code in relation to privacy, the discretion surrounding the reporting of grief and shock (particularly in relation to the reporting and photographing of such grief in children) and the extent to which it is appropriate to publish photographs or material such as that trawled from the school trip website which one would have thought would obviously not have been intended for public consumption. This raises the question of who should be considering these issues, the value of a complaint (the damage having been done and no regret being sufficient to remove the additional impact that the press coverage had) and the need for an enunciation of standards.

¶7.14 Although I might have a clear view, I do not think it would assist if I sought to take the place of a regulator in this very topical case although it certainly says something about the practices of the press. The most important point, however, is that it is not in the least surprising that Mr Bowles does not pursue a complaint; his focus remains on the loss of his son. The matter was put clearly by Mr Crown in these terms:¹¹²¹¹² p113, line 24, Giles Crown, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Morning- Hearing-26-June-2012.pdf

"I would just like to try and make clear that [the Bowles] family have no wish to have a fight with the media in any sense. They gave evidence reluctantly because they felt it was the right thing to do. They are disappointed that with regard to such an immense tragedy they would have expected some greater restraint from the media in the way the tragedy was reported and in [Mr Bowles'] view that wasn't the case. F Just to emphasise, their over-riding desire [is] that their privacy is maintained as it is still, as you will understand, a very recent event and additional publicity at this point would greatly aggravate the family's [grieving]."

¶7.15 As much as any of the stories covered by this Report, this account underlines the very real dilemma faced by the press when balancing the respect that is owed to those who suffer almost unimaginable personal tragedy with which, in some way, they have to come to terms, and the legitimate public interest in an incident that has significance for everyone. I repeat the proposition that if nobody will review editorial decisions in the absence of a formal complaint, (that would require energy to deal with by someone who has far greater issues to have to confront it), is, in my view, a serious lacuna in our approach to the maintenance of standards.

Recent events: Royal photographs

¶8.1 At the conclusion of the hearings on 24 July 2012, I repeated that I would not hesitate to ventilate anything that happened over the months prior to publication of the Report, which I felt impacted on the work of the Inquiry. In the event, there have been a large number of stories which warrant attention and justify consideration as part of the Terms of Reference. On the basis that I have decided that it is not necessary or appropriate to hold further hearings or seek further submissions (save in response to letters issued under Rule 13 of the Inquiry Rules 2006), I do not intend to refer to most other than to comment that the argument that the Inquiry has had a chilling effect on journalism does not appear to have been borne out. There are, however, two stories that are of such importance, or such value to the Terms of Reference of the Inquiry, they must be addressed in some detail even though the latter reveals no impropriety on the part of the UK press.

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¶HRH Prince Henry of Wales

¶8.2 The first story that requires attention is the recent publicity surrounding the behaviour of HRH Prince Henry of Wales (Prince Harry), a 28 year old army officer and third in line to the throne.

¶8.3 It is unnecessary to rehearse the circumstances in which, following the death of Diana, Princess of Wales in a road traffic accident (which occurred while she was followed by paparazzi photographers), the press agreed to respect the privacy of Prince Harry and his elder brother during their school years. It is equally unnecessary to outline the various stories that have been printed about him thereafter; nobody could suggest that he was not a public figure and there is no doubt that his conduct has and can legitimately generate questions the discussion of which is entirely in the public interest. The issues which recent events have revealed concern the extent to which he is entitled to any private life or privacy and the impact of publication of photographs on the internet.

¶8.4 Having received plaudits for his work during the course of The Queen's Diamond Jubilee and as an Olympic Ambassador, during August 2012, while on leave, Prince Harry went on holiday to a resort in Las Vegas; as usual, he was accompanied by personal protection officers. During the course of the holiday, on 21 August, he invited a group into the apartment which he F occupied and, in their presence, is said to have played a game of "strip billiards". However it arose, at least two photographs were taken of him naked, one of which showed him shielding a naked girl and another embracing the girl. The photographs are reported to have been taken on a mobile phone.

¶8.5 The photographs were quickly sold to an American website TMZ.com and put on the internet; they were also published by the blogger Paul Staines on his Guido Fawkes blog based in Ireland. Equally quickly, contact was made by or on behalf of St James's Palace (for the Prince) with the PCC; this was followed up by a letter dated 22 August 2012, requesting circulation to managing editors so that the position of the palace was clear. The PCC circulated the letter, quoting the concern expressed but without commenting upon it. In the light of what followed it is important to set out what it says in detail:

"As we understand the position following a telephone call to St James's Palace this afternoon, a number of British newspapers have jointly purchased the photographs and have served notice of their intention to publish them both on-line and in their newspapers. They have asked what the reaction of St. James's Palace would be to such behaviour on their part. As we have already discussed with you, the photographs in question were taken on an entirely private occasion and in those circumstances there was a more than reasonable expectation of privacy. No matter of public interest (as those words are understood in English law) is raised by these photographs. The fact that they have appeared in another jurisdiction is meaningless. The only possible reason for publication of the photographs is prurience and nothing more. As such any publication would be a clear breach of Clause 3 of the PCC Code. We should be grateful if you would circulate this letter to the relevant managing editors of your members so that they are fully aware of St James's Palace's position and the fact that they entirely reserve their rights as to any further steps that they may take should publication take place."

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¶8.6 On 23 August, the entire British press respected the wishes of St James's Palace and the photographs were not published. However, The Sun created a mock up of one of the photographs, using its picture editor and a 21 year old undertaking work experience on its fashion desk (also described as an intern), both of whom, the caption reported, were "happy to strip" although the image, which had also been placed on its website, was later removed.¹¹³¹¹³ Both the picture editor and the work experience intern were perfectly entitled to pose for this photograph if they wished: given the likely anxiety that a 21 year old girl on work experience might have to secure full time employment, the fact that she was asked or permitted to do so raises issues not dissimilar to those discussed in Part F Chapter 6 relating to pressure on staff Many newspapers blamed the effect of this Inquiry when asked why they did not print the photographs. Later that day, The Sun changed its mind and, in a mood described in The Sunday Times as 'jubilant', uploaded the images onto its website and published the photographs (one of which was on the front page) the following day.

¶8.7 When the decision had been made David Dinsmore, the interim managing editor of The Sun, wrote to Lord Hunt, the Chairman of the PCC, to the effect that it was becoming "increasingly perverse not to publish the pictures". The Sun published its own account of its reasons. Other titles joined the debate and were, in the main, supportive of The Sun; it is unnecessary to consider any but The Sunday Times. In the absence of any formal complaint from the Prince, the PCC has chosen to do nothing, explaining why it had taken that course. Each of these arguments repays detailed analysis not least for their failure to deal with the other side of the case which, however partisan the press is entitled to be, raises important issues for debate. The purpose of putting the argument is to ensure that the public have a fuller account of the competing arguments than might be received simply by reading the newspapers.

¶The Editors' Code of Practice

¶8.8 Before going to the detailed arguments, it is worth setting out the relevant terms of the Editors' Code of Practice, drawn up by editors and agreed by those who subscribe to the PCC

¶(including The Sun). Paragraph 3 (headed Privacy) provides:

i Everyone is entitled to respect for his or her private and family life, home, health and correspondence including digital communications. ii Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information. iii It is unacceptable to photograph individuals in private places without their consent. Note: Private places are public or private property where there is a reasonable expectation of privacy. There is an exception to this provision where the publication can be demonstrated to be in the public interest. That is defined in this way: 1. The public interest includes, but is not confined to: (i) detecting or exposing crime or serious impropriety. (ii) Protecting public health and safety. (iii) Preventing the public from being misled by an action or statement of an individual or organisation. 2. There is a public interest in freedom of expression itself.

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Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time. 4. The PCC will consider the extent to which material is already in the public domain or will become so. ...

¶8.9 The legitimate questions which arise are: (a) Was the photograph taken in circumstances of privacy? (b) Does the Prince lose his right to privacy because he has invited to his hotel suite people whom he does not know? (c) Is there any basis for contending that the Prince consented to the taking of the photograph (there being no suggestion that he did) and, if he did not, is there a difference between taking the photograph (which the Code describes as unacceptable) and publishing it? (c) Accepting that there is a public interest in freedom of expression itself, was there any public interest in the publication of the photographs (rather than the story with the description of the photographs)?

¶8.10 A more general question can also be posed about the Code. It is entirely understandable that a public interest can, in certain circumstances, defeat the rights to privacy enshrined in the Code (and, of course, Article 8 of the ECHR) and that freedom of expression is itself in the public interest (although that cannot defeat the privacy right in every case because that would make the provision meaningless). It is more difficult to see why 'the extent to which material is already in the public domain' should itself create a public interest which permits publication. It might be that it ought to be cast as a separate question but, on the basis that F the code is a statement of ethical good practice, it is open to question whether the ethical balance should be affected simply because others who do not hold themselves bound by such a code ignore its principles.

¶The Sun's letter

¶8.11 Mr Dinsmore raised seven points, not all of which address the questions set out above, but which it is worthwhile considering in turn. The first concerned the legitimate public debate. He said:

"The entire UK media including both print, online and television has reported on the fact and existence of these photographs. This has in turn generated a legitimate public debate as to the Prince's behaviour. There is now a debate across the country as to whether such conduct is acceptable from the third in line to the throne who is increasingly taking on a more public and official role ... That debate should not take place in a vacuum."

¶8.12 The argument regarding the legitimacy of public debate is powerful but, in the context of this particular publication, of limited, if any, relevance. There is no doubt that the remit of his protection officers is an important issue with a legitimate public interest. Further, for the purposes of this argument, it is appropriate to assume that whether the Prince's conduct is "acceptable" is also a matter of public interest (although a point made later in the letter about his position in the army appears somewhat specious). Such a debate, however, did not take place in a vacuum: what transpired and what the photographs revealed was graphically described in print. The debate did not need the pictures.

¶8.13 The next three points can be taken together. The second and third concern the fact that the media had identified the website on which the photographs could be viewed, making the point that 77% of the public have access to the internet so that the photographs are in the public domain (which the PCC Code requires to be taken into account). The number of hits to the pictures, it is asserted, rose from 25.8 million to 160 million by 11:00hrs on the morning of 23 August (although how much of that is the consequence of the press coverage is another matter); the photographs were also on Facebook. It was argued that the suggestion (by the Palace) that the fact that the photographs have appeared in another jurisdiction is 'meaningless' was to miss the point that the internet transcends jurisdictions.

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¶8.14 The fourth point is the reverse of the third. The fact that the photographs are so widely available on the internet creates an issue for those who do not have access to the internet so that there is "an unfair and inappropriate situation adversely affecting the ongoing debate in this country". Mr Dinsmore goes on:

"That situation cannot be allowed to continue in a debate of such importance where everybody should have equal access to the photographs in question and not just those who can access the internet."

¶8.15 These points utterly ignore a number of equally valid arguments. First, it is important to repeat that it is entirely possible to have the debate (however important it is) without seeing the photographs at all. Second, anybody who feels that it is necessary to see them (for whatever reason) is able to do so, for the vast majority of those without internet doubtless will know someone who has access, or could go to a library or to one of any number of places where access to the internet is possible. Third, and of particular importance, it ignores the fact that there may also be a large number of people who do not want to see the photographs or, even more likely, who do not want their children to see the photographs. To some extent, F parents can control what their children can access on the internet: if they take their child into a newsagent, garage or supermarket – or past a news stall – the control that they must be entitled to exercise is lost.

¶8.16 The fourth argument resonates across a range of issues. The fact that something is on the internet does not justify its publication in a newspaper. The internet is an uncontrolled space with material upon it which I anticipate The Sun would not wish to publish because it is pornographic, racist or offends one of the many other codes of decency to which most people aspire. Bob Satchwell of the Society of Editors put the point in this way:¹¹⁴¹¹⁴ as reported in The Times, 24 August 2012

"Of course, freedom of the press is important. But just because you can publish something doesn't mean that you should."

¶8.17 The fifth argument advanced by Mr Dinsmore is to challenge the assertion that the reason for publication of the photographs would be prurience and nothing more and then to repeat the first argument about the issues that arise while ignoring the ability to have the debate without sight of the photographs. The letter then goes on to assert:

"For that debate to take place in an informed light these photographs should be published in accordance not only with our Article 10 right to impart information but also in accordance with the general public's right to receive it."

¶8.18 The Article 8/Article 10 debate again requires an analysis of the public interest although "special considerations attach to photographs in the field of privacy. ... As a means of invading privacy, a photograph is particularly intrusive".¹¹⁵¹¹⁵ Douglas v Hello! Ltd [2006] QB 125 In reality, it takes the argument no further forward.

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¶8.19 Mr Dinsmore then cites a decision of the PCC from 2010 concerned with the magazine Loaded where a photograph had been given a wide circulation on the internet such that it was untenable to rule that it was wrong for it to be used in a magazine. This decision (part of the jurisprudence of the PCC) is itself open to criticism and is further discussed in the light of the response of the PCC and the further Royal story.

¶8.20 Finally, Mr Dinsmore suggests that although the Prince is naked, the photographs do not show him "in any situation of extreme personal embarrassment nor do they reveal any intimate details of his body". I am not sure of the basis on which Mr Dinsmore makes the assessment (if this is what he is saying) that these photographs are less invasive of the Prince's privacy than they might have been and therefore justifiable or that they would not cause extreme personal embarrassment: it may not be without interest that the 21-year old who posed for the mock-up is reported to later to have tweeted "lol 5 mins of fame #cringin".

¶The Sun article

¶8.21 The full front page headline "HEIR IT IS Pic of naked Harry you've already seen on the internet" (inconsistent with the argument that the purpose of publishing the pictures was to show them to those who did not have access to the internet), goes on "HEIR IT IS; WE FIGHT FOR PRESS FREEDOM", "PRINT HARRY" and "Naked Vegas pics swept the world on web. Now it's vital you see them here The Sun SAYS". The article goes on to assert that its readers F "have been prevented from seeing" the pictures in print and later that "the Press were still effectively banned from using the pictures" so that "millions of people who get their news in print or have no web access could not take a full part in that national conversation because they could not see the images". It also argues that the Prince had "compromised his own privacy". The paper ends:

"It is absurd in the internet age newspapers like The Sun could be stopped from publishing stories and pictures already seen by millions on the free-for-all that is the web."

¶8.22 Quite apart from the merits of the decision, this article raises other issues of concern. The request from the solicitors acting on behalf of St James's Palace is set out at length above. It does no more than respond to a request for their reaction to the stated intention to publish and state their position. It does not "effectively ban" their use. It does not prevent anyone from seeing them. Neither is the issue one of press freedom: the press (including The Sun) were free to do what they wanted and to publish what they wished. The Palace only referred to the Editors' Code of Practice to which The Sun voluntarily subscribes. The only mechanism that could have prevented The Sun from publishing the photographs was an injunction obtained from the High Court and there is not the slightest suggestion that such relief was even sought. Yet that is not how the story was told.

¶8.23 Finally, reliance was placed on the fact that the pictures were on "the free-for-all that is the web". Quite apart from the other material available on the web that The Sun would not print, the point of the Editors' Code is that newspapers subscribe (or are supposed to subscribe) to higher standards than "free-for-all" which does not put a bar in place at all. Further, if that is the answer, it is a real risk that a determined effort could be made to put a story or a photograph that offends the Code onto the internet through an intermediary in order to demonstrate that it is then in the public domain and, thus, can be printed. It is open to question whether such a "free-for-all" is in the public interest.

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¶Other Comment

¶8.24 The Sunday Times (owned, of course, also by NI) published an editorial on Sunday 26 August under the headline "THE SUN'S BRAVE LONE STAND FOR PRESS FREEDOM", saying that Prince Harry had put the issue of press freedom squarely on the agenda and asserting that other newspapers did not publish "because of the atmosphere created" by the Inquiry. It cited many occasions when British newspapers had been deprived of information freely available to counterparts overseas including the abdication crisis and the Spycatcher affair, although it recognised that people in Britain were not being deprived of anything but were "just not allowed to see it in their newspapers". The leader goes on:

¶"Critics said The Sun's public interest arguments were a convenient mask for commercial motives. It is a spurious criticism. Newspapers are fighting for their lives in the toughest of economic climates combined with technological changes that weigh heavily against traditional print. If they are not commercial they will die and they cannot let the internet become the prime forum for communication. But that was not the sole purpose of publishing. There is a dangerous coalition forming of aggrieved film and television stars, out-of-sorts Labour politicians and bien pensants who would happily bring much greater regulation and censorship to the press. They believe they should decide what is in the public interest and not the millions who buy the red top papers. To publish these pictures was a defiant gesture to those would-be moral arbiters.

¶Of course many images and much content on the internet will rightly never find their way into our newspapers for the good reasons of taste, accuracy and relevance. But this was different. It was of enormous interest to the public and it was in the public interest to know how the third in line to the throne really behaves. The public can then decide how it regards him. The bigger issue is the future of the press. If it is gagged and stifled it will die and the country would be hugely poorer for it. John Wilkes fought long and hard for freedom of expression, including publishing what was regarded as pornography at the time. Lord Justice Leveson, it is hoped, understands that. It was right to publish — and not be damned."

¶8.25 This is a remarkable article. On the subject of the story, there is no discussion of the Editors' Code of Conduct, of any right that Prince Harry might have to privacy or any public interest in publication of the photographs. Given the approach of the Palace to the PCC, there was no question of the press being gagged, of an attack on press freedom or an attempt to hide the story (as in the abdication). The commercial issues facing the press are understood but nobody has ever suggested that the only way the problem can be solved is by abandoning the Code of Conduct. As for the millions who buy red-top papers, The Sunday Times published the result of a poll to the effect that 61% of respondents thought that The Sun was wrong to publish the photographs and 68% thought that the Prince's behaviour was acceptable.

¶8.26 As for censorship, not a single witness either orally or in writing sought censorship. Everyone recognised the importance of a free press and the benefits of public interest investigative journalism. No one suggested they should be the arbiters of press practice: all wanted the press to follow the letter and spirit of a code for which the editors had responsibility. That is not to say that they believed in the present operation of the PCC or considered that the Code could not be improved but that is not the criticism that the editorial makes.

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¶8.27 It would be possible to examine the coverage of other titles and the selective reporting of opinion from politicians and others. It is a matter of comment that, with the exception of the Independent on Sunday, almost all the national Sunday titles took the same view as The Sunday Times. The press are, of course, entitled to a partisan view but it is difficult to see how it represents its readers if the majority opinion is not even expressed or explained. The inference may be that the agenda it was following was its own.

¶The PCC

¶8.28 The way in which the PCC generally responds to complaints has already been analysed at length.¹¹⁶¹¹⁶ Part D Chapter 2 On the other hand, this very recent example of the approach taken by the PCC, following the conclusion of all the evidence heard by the Inquiry, is extremely illuminative. Furthermore, there are sufficient specific features of its reaction which it is worth considering in detail and which justify (or at least excuse) what might be a measure of repetition.

¶8.29 Following contact from St James's Palace, the story continues with the head of complaints and pre-publication services. She passed the letter from the solicitors on to the editors and invited any discussion about code issues. It is not suggested that she was approached by The Sun for advice pre-publication or at all (although the letter setting out their defence was sent before the photographs were, in fact, published). It has since been reported that the PCC did, in fact, provide advice to other editors, on request, about the relevant issues.

¶8.30 Meanwhile, after The Sun's publication of the photographs, the PCC received around 3,800 complaints that the photographs breached clause 3 of the Code: by the time of their regular meeting, no formal complaint had been made by or on behalf of Prince Harry. In a statement, the PCC goes on to observe:

"The Commission would be best placed to understand these issues – including the circumstances in which the photographs were taken – with the formal involvement of Prince Harry's representatives. In addition, an investigation by the Commission, without consent, would have the potential itself to pose an intrusion. The Commission is grateful to the many members of the public who have contacted it to express concerns about The Sun's coverage but has concluded that it would be inappropriate for it to open an investigation at this time for the reasons above."

¶8.31 At the conclusion of its statement, the PCC comment that it would be wrong to preempt the conclusions that it might reach were a complaint to be pursued but it "notes" that the question of how to apply the privacy provisions in relation to material freely available on the internet has been faced on a number of occasions in decided cases, observing that each decision is reached only after a detailed examination of the facts of the case. It then makes the final comment (to which reference is made later) that it will publish guidance for publications on these matters.

¶8.32 The upshot is that although the majority of those polled (as reported in The Sunday Times) felt it wrong to publish the photographs and a substantial number of members of the public felt sufficiently strongly about the matter that they complained to the PCC, the PCC will say nothing about the matter, one way or the other, unless Prince Harry personally complains. This is notwithstanding the fact that his views are well known: they are reflected in the letter that solicitors wrote on behalf of St James's Palace prior to publication. The PCC is hardly enhancing its reputation as a definitive arbiter of press standards by taking this course.

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¶8.33 It may be the case that the PCC might have been or be better able to understand the issue from the perspective of the Prince if he provided further details of the circumstances in which the photographer came to be in his suite and was not prevented from taking the photographs; however, to ask him to do that would, undeniably, constitute 'further intrusion' by providing information not presently available and which would all then be deployed in public. The PCC argues that investigating without the consent of the Prince would have the potential itself to pose an intrusion but The Sun had to make its decision based on the material then in the public domain. If he were to have complained, it is not difficult to see the paper seeking to put questions to St James's Palace about these matters in order to provide some additional arguments not available at the time. In the context of this case, that would undeniably be 'further intrusion'.

¶8.34 There could be circumstances, perhaps concerned with whether or not the subject of the story has 'set it up', that to investigate without a complaint might constitute an intrusion, but there is no suggestion of that sort of circumstance in this case. Here, the question is not whether there is a public interest in the facts of the story and St James's Palace has not sought to contend to the contrary. The only question relates to the publication of the photographs. In that regard, there is sufficient information available in the public domain and the stance of St James's Palace is quite clear from the letter which was circulated. If the PCC is concerned about standards and the Editors' Code of Conduct, there is nothing to stop it analysing the issue based on the material that was available to The Sun at the time: in doing so, everybody F would know where the PCC stood on the matter. As it is, the fact that at least 3,800 members of the public felt that it was appropriate for the PCC to look at this complaint is deemed irrelevant but, in reality, by saying (and doing) nothing, the PCC will be seen as endorsing the approach of The Sun whether or not it does so. The Sun having 'got away' without adverse adjudication (which is what the editors say they most fear) will be taken as a green light and a precedent for the future.

¶8.35 Issuing guidance (which is what the PCC identifies that it intends to do "drawing on its decisions in previous cases")¹¹⁷¹¹⁷ On 15 November 2012 the PCC published guidance, http://pcc.org.uk/news/index.html?article=ODEwNw== is precisely the effect of considering the facts in this particular case. Indeed, Mr Dinsmore throws the gauntlet down to the PCC in the sixth argument in his letter of 23 August when, in relation to its decision in the case involving the magazine Loaded, it ruled against the complaint "on a situation very similar to this" (where material had already been given a wide circulation) and asked the PCC to distinguish that complaint from this. Because of the further story involving the Duchess of Cambridge, this general point is analysed below.

¶8.36 The purpose of recounting this story is not to reach a view, one way or the other, about the publication of these photographs. In the context of this Inquiry, what this episode illuminates is the adequacy (or otherwise) of the mechanism for maintaining the standards to which the press loudly asserts it adheres. It has since been announced that, in the light of his deployment to Afghanistan, Prince Harry will not pursue a complaint but there was, in truth, no point in St James's Palace making a complaint to the PCC. If such a complaint was rejected, it will signal the very free for all based on what is available on the web; if one had been made and upheld, it is abundantly clear from the various press reports that followed the publication that the adjudication will be rejected and blamed on what is said to be the effect of the Inquiry. In truth, the moment has been lost and the right to publish effectively endorsed without the contrary argument having been analysed. To say that guidance will be issued in the future does not carry the issue any further.

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¶HRH The Duchess of Cambridge

¶8.37 The story of Prince Harry was quickly overtaken by a different story which evinced a very different reaction. On 14 September 2012, a French magazine, Closer, published photographs of HRH The Duchess of Cambridge sunbathing topless taken by a paparazzo with an ultra long lens while she was on holiday in a private chateaux belonging to Viscount Linley in Provence. It is said (and, having regard to the length of the lens required, doubtless entirely accurately) that the photographs can only have been taken from a considerable distance away. The publication was followed by republication in the Irish Daily Star (much to the annoyance of Mr Desmond whose Northern and Shell company is a part owner of the paper) and in other newspapers and magazines. The photographs are on the internet.

¶8.38 The press in the UK universally condemned the publication of these photographs as a gross breach of the privacy to which the Duchess was entitled. The Sunday Times¹¹⁸¹¹⁸ 16 September 2012 published an editorial identifying a contrast between the photographs of Prince Harry ("when he invited people into his hotel suite for his naked antics" and in respect of which he "rightly did not complain") and these photographs ("of a young couple on a very private holiday" so that "William and Catherine have rightly resorted to the law") although noting that they "were freely available on the internet within hours". The editorial also said:

¶F "Editors of British newspapers did not need the threat of privacy laws or even Lord

Justice Leveson's inquiry to know not to publish these pictures. When they were hawked around Fleet Street they were met with a cool response. It was a case of self-regulation working; the Editors' Code specifically prohibits photographing individuals in private places without their consent. Newspapers in Britain in any case knew they would face a readers' revolt if they dared to publish."

¶8.39 The language of this editorial is revealing. The first article talks about press freedom and defiant gestures with the public having the right to know how the third in line to the throne behaves. The latter recognises that photographing individuals in private places without their consent is specifically prohibited and that newspapers would face a revolt if they dared to publish although I am sure that the editorial was not making the point that the decision not to publish was because the ethical and commercial considerations ran in tandem. In the case of Prince Harry, there was a story which, in the public interest could be told; in the case of the Duchess, there was not. In both cases, what is at issue is the publication of photographs by editors bound by a Code of Conduct and the relevance of the fact of their publication on the internet.

¶The relevance of the internet

¶8.40 It is necessary to return to the reaction from the PCC and the reference in its statement to the internet. Following its decision not to launch any investigation into the publication by The Sun of the photographs of Prince Harry without his consent, the statement went on:

"It would be wrong to pre-empt the conclusions the Commission might reach were a complaint to be pursued. Nonetheless, the Commission notes that the question of how to apply the terms of Clause 3 (Privacy) in relation to material that is freely available on the internet is one that it has faced on a number of occasions in recent years, including in the cases of Mullan, Weir & Campbell v Scottish Sunday Express (2009); A Woman v Loaded (2010); Minogue v Daily Mirror/Daily Record (2010); and Baskerville v Daily Mail/The Independent on Sunday (2011). In each instance it reached a decision only after a detailed examination of the facts of the case."

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¶8.41 The PCC is not, of course, bound by the system of precedent that operates within the common law. However, it is obviously important that there should be consistency of decisions provided, that the decisions are truly on point, relevant and not clearly distinguishable. Not surprisingly, none of the cited cases are entirely relevant because none concern members of the Royal Family whose activities, however much in keeping with what might reasonably be expected of young people when relaxing in private, will attract attention if likely to titillate the prurient.

¶8.42 Three of the four cases concerned material put onto social networking sites (and, thus, it was argued into the public domain) by the persons affected. In all three (two of which were rejected), the PCC referred to the extent to which it was acceptable to publish information taken from such websites even if intended only for a small group of acquaintances. In the one complaint upheld (Mullen and others), three survivors of the Dunblane shooting some 13 years earlier had put material about themselves and their activities onto a website; this information was then published alongside photographs although efforts had been made over the preceding years to shield them from publicity. The PCC held they had done nothing to warrant media scrutiny, images (even if publicly available) were taken out of context and presented in a way designed to humiliate.

¶8.43 The other two cases involving social networking sites can be summarised in this way. The F first (A Woman v Loaded) concerned photographs of her breasts which she had placed on her Bebo site when she was 15 but which had since been uploaded onto the internet along with her name, having been easily accessed by Google search. The magazine had published a piece discussing the fact that the material was already widely used in this way by others. The PCC considered that the fact that she was then 15 at the time of the photographs raised issues of taste but as she was an adult at the time of this publication, the additional protection available for children no longer applied. Given that the additional public interest required in relation to material covering children is, in part, to protect them against themselves when they are not old enough to appreciate the consequences, it is difficult to see why the fact that she was no longer a child should have prevented the higher standard being applied: that is not to the point in this case. What was decided was that because the information in the same form was widely available, republication did not breach the Code.

¶8.44 The second case (Baskerville) concerned material written by a civil servant relating to her employment which she had posted on Twitter anticipating a small circulation to her followers but failing to take account of the ability to retweet and so reaching a far wider audience. Having decided that there was a public interest (the wisdom of civil servants using social media platforms which could give rise to claims of conflict with professional duties), notwithstanding the distress caused, no breach of clause 3 of the Code was established.

¶8.45 The third case is nearer in one sense (because it concerns a famous personality) but further away in another. Dannii Minogue complained that her pregnancy was reported prior to the 12 week scan. The Daily Mirror and the Daily Record sought to justify the breach of the rule forbidding such publication on the basis that the information was available the previous day on a blog and on the Sydney Morning Herald website. It was argued that the news was either 'in' or 'not in' the public domain and given these reports had ceased to be private. The PCC ruled the references in the blog and the website were speculative and that the purpose of having regard to "the extent" to which information had previously appeared was common sense for, if it were otherwise, reference on-line would represent automatic justification for publication. This complaint was upheld.

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¶8.46 Based upon A Woman v Loaded, it might be thought that substantial dissemination of the material is sufficient to trump any other claim to privacy: that is precisely what Mr Dinsmore argued. He would doubtless point to the fact that Prince Harry was not a child; he effectively argued that the fact that there is no basis for suggesting that he had encouraged or consented to the taking or publication of the photographs was more than met, first, by the public interest in his behaviour and, second, by their widespread publication on the internet and elsewhere.

¶8.47 The reality is that these cases are not truly comparable. As is patently clear, anything that any member of the Royal Family does will always attract attention and if widespread publication trumps any right to privacy, then there is no protection at all. Paparazzi will seek to obtain what photographs they can; someone, somewhere will be only too pleased to publish them and, if the Code was construed in that way, the door would be perpetually open to any title then to publish without being in breach.

¶8.48 However, that is not the case that the press mount. Nobody at all has suggested that publishing the photographs of the Duchess of Cambridge would be anything other than a breach of the Code, notwithstanding the widespread availability of the images in other jurisdictions. So, at least for the Royal Family, widespread availability of an image on the internet on its own is not sufficient. There has to be some other public interest in publication of that image in order to justify it. For the Duchess, there clearly is not. But that equally means that playing the card F of widespread availability is not good enough in relation to the Prince Harry photographs either, particularly when the public interest points that arise from the Las Vegas holiday do not depend on sight of the photographs.

¶8.49 Nor can a distinction be drawn between the paparazzo who took the long lens photographs and whoever sold the mobile phone photographs in Las Vegas: both did what they did for money. True, the paparazzo was not known about and had not been trusted not to betray the confidence which followed the invitation to visit Prince Harry in his suite, but it is difficult to argue that this is not a distinction without a difference.

¶8.50 It is worth repeating the argument published in The Sun newspaper:

"It is absurd in the internet age newspapers like The Sun could be stopped from publishing stories and pictures already seen by millions on the free-for-all that is the web."

¶8.51 Given that this would apply equally to the photographs of the Duchess, this alone is not good enough. Neither is the argument that it is up to the editor to exercise his judgment.¹¹⁹¹¹⁹ although it is to be noted that Northern and Shell which is a part owner of the Irish Daily Star issued a statement expressing its disappointment that the decision to publish had been taken without reference to the company or to Richard Desmond. That raises a question about the role of proprietors in editorial decisions but where issues of reputation arise, different considerations may apply In one sense, that is always true; but such decisions must be taken within the boundaries of a clear and effective code: that is what it is for.

¶8.52 Irrespective of the rhetoric in the press, this is not about censorship or banning anything; it is not about freedom of the press; it is not about statutory regulation. It is not about the editors being forbidden to publish the photographs; St James's Palace must be entitled to express its own view without being accused of having taken any of these draconian measures. Whatever system of press regulation is in force, ultimately, in this country, any editor will be free to publish what he or she believes should be published. What it is about, however, is maintenance of standards and the requirement that an editor is held to account by someone for the decisions which have been made, based on a Code that has attracted the confidence and general approval of editors and commands the confidence of the public. Even a complaints handling mechanism resolves complaints made by the public when it is not necessary to obtain further details and there is no additional intrusion beyond that which is already in the public domain.

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¶8.53 Neither is this a case simply about freedom of expression. The Royal Family are, of course, in the public eye and its members will be held to account for what they do. But if society wants them also to mix with the public and in the real world, they have to be given the space to do so and their right to have a degree of privacy (less than that available to ordinary members of the public but more than at a level that is vanishingly small) must also be recognised. Precisely where the line is to be drawn is not a decision for the Inquiry to make. But decisions such as this have to be made by a body that is prepared to see the entire picture from every perspective. The decision requires balance and, perhaps, rather more balance than has been afforded to the issue in the discussion that the press has initiated and conducted.

¶8.54 This does not mean that photographs will not be available in other jurisdictions across the world, or that information will not be available about what has happened: there is no news blackout and the parallel with the Abdication crisis simply does not withstand examination. To that extent, therefore, the Royal Family and anyone in the public eye will have to be aware of what can happen and take steps accordingly. But if the press in this country do aspire to behave ethically and in accordance with standards that they have agreed, it does F mean obeying those standards consistently and not only when it suits them or when it is commercially convenient to do so. Otherwise it is a free for all.

¶Other events

¶8.55 These are not the only stories that have been published in the period since the Inquiry has concluded that could be the subject of comment. Watching the press, as it was clear the Inquiry intended to do, there have been other articles and photographs that have attracted attention and raised concerns about breach of privacy without any apparent justification based in the public interest. To start to analyse further stories and further examples is unnecessary although it is worth observing that what has been happening seems, at least in my judgment sufficient to undermine the criticism that the Inquiry has chilled press activity.

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