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January 23, 2020updated 30 Sep 2022 8:50am

Why Harry and Meghan are better equipped to protect their privacy in England than Canada

By Dominic Ponsford

It may turn out that the Duke and Duchess of Sussex were better placed to protect their privacy in Windsor than they are on Vancouver Island.

For all the faults the Sussexes may see with the British press, it is at least (for the most part) regulated and there are far stronger privacy protections enshrined in English and Welsh law than there are in Canadian law.

Their latest, not unreasonable, complaint is over paparazzi pictures taken of Meghan while walking her dogs and young son Archie in a public park.

In the UK such pictures would be a potential breach of privacy under the Human Rights Act and Article 8 of the European Convention on Human Rights, which also upholds people’s right to privacy.

Since the landmark 2004 Princess Caroline ruling at the European Court celebrities have been able to argue that they have a right to privacy when carrying out private business in public (so while out shopping, say, or emptying the bins).

Canada doesn’t have a tradition of paparazzi photographers so is not particularly well equipped to deal with the scrum which has apparently gathered outside the Sussexes’ new seaside abode.

British Columbia has a privacy act, but it is reportedly untested and it is anyone’s guess whether Canadian courts would take a European position (which would likely forbid such photos) or a US one (which would allow them on grounds of freedom of expression).

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As for the media scrum, if journalists were causing a nuisance outside Frogmore Cottage the Sussexes could complain to the Independent Press Standards Organisation which would promptly issue a desist notice to its members – most of the British press, including the tabloids.

Such notices are a weekly occurrence in the UK and observed by the press as a price worth paying for having a system of voluntary self-regulation.

The latest pictures have been published by UK titles including Mail Online, which takes the view that it follows the privacy laws of the territory that pictures have been taken in (and managed to get such an opt-out enshrined in the IPSO rules). It evidently takes the view that Canada is close enough to take a USA-style position on such pictures.

But if similar pictures had been taken in a UK park even Mail Online would likely avoid them.

Under UK law there is precedent for the successful prosecution of persistent paparazzi – another reason why IPSO desist notices are taken seriously. Actress Sienna Miller sued the news agency Big Pictures and won in 2008 after claiming that its pursuit of her amounted to harassment as well as an invasion of privacy.

Whether it is right to subject the Sussexes to such continuing scrutiny now they are no longer working royals is another question.

The media has previously justified its inquisitiveness partly on the grounds that they are paid out of the public purse and have chosen to accept public roles.

Now the duke and duchess have effectively resigned from “the firm” press interest is less easy to justify.

But if the royal couple really wanted anonymity they could become plain Harry and Meghan Windsor and take regular private jobs.

The launch of the Sussex Royal brand suggests that they still want to cash in on their celebrity. If so, they will have to pay the price that all celebrities pay for having a lucrative public existence and expect a certain amount of press scrutiny.

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