The French do their bit for privacy law reform
Illustration: Simon Letch
The Duchess of Cambridge's breasts have loomed into view at a critical moment. Lord Justice Brian Leveson is locked away writing his report on what to do about regulating the British media. In particular, he will make recommendations about privacy remedies.
At the same time, on to the cabinet agenda in Canberra has popped an item about a new privacy bill dealing specifically with media intrusions where people have a ''reasonable expectation of privacy''.
According to reports this week in The Australian Financial Review, the legislation for a statutory cause of action in privacy was to have been discussed this week, but it looks to have been put off for a fortnight.
Hovering in the background is the presence in this country of Rupert Murdoch, whose British tabloids lead the way in hallmarked dross. In December, Leveson himself will visit Australia for a couple of public talks.
Grinding their teeth in frustration, the British red tops have not published the Kate Middleton snaps. This is not because of respect for the duchess, but because they're trying their darnedest to be on their best behaviour while Leveson is writing his report.
A tabloid in Ireland, partly owned by Richard Desmond, published the pictures. To show how seriously the proprietors regard this lapse of judgment in the present climate, the editor has been suspended. The Irish Justice Minister is looking at toughening-up that country's Privacy Act.
Murdoch's The Sun broke ranks and published the Prince Harry Las Vegas bottom shots. Incredibly, other British papers or broadcasters did not follow. Maybe there's no need for a statutory regulator - just keep Brian Leveson locked in his study drafting reports.
Every legal opinion to hand says the publication of the duchess's breasts in the magazine Closer is a breach of French civil and criminal law.
The shots of the future queen of England (and Australia) were taken in a private moment on private property without her consent or knowledge.
A court has injuncted Closer from further publication of the pictures, and a Paris prosecutor is looking at criminal proceedings, the maximum penalty being a fine of €45,000 ($56,000) and one year's prison for ''willful violation of the intimacy of the private life of other persons''.
It's chicken feed against the revenue from an extra 100,000 in sales, and in these situations publishers and editors make calculated and cynical decisions to publish and be damned, knowing there's considerable financial upside.
The injunction and the criminal sanctions in France are ridiculed by what's abundantly available on the internet and by other European publications that have swooped on the money-making moment.
A Danish magazine called Se Og Hor, unaffected by the French injunction, is planning a 16-page spread with 60 photos of the bare-chested duchess. The editor-in-chief, Kim Henningsen, was quoted in the Daily Mail on Wednesday as saying that it is ''my job to publish'' the photos.
With terrifying insouciance, he added: ''It is always relevant for us when a duchess and the future queen of England is topless and willingly reveals her breasts towards a public road.'' Never mind that the road was more than half a mile away.
Italian and Swedish publications have also inked their presses for lavish supplements. It was just a matter of time before someone's breasts came front and centre of a rejuvenated demand for remedies against privacy intrusion.
As if this valiant flourish for the free speech cause was not distracting enough, we now have another French organ, the satirical Charlie Hebdo, publishing cartoons depicting Muhammad in the nude.
The French government has warned its embassies and schools abroad to batten down the hatches.
The Prime Minister, Jean-Marc Ayrault, declared that France is a country where freedom of expression is guaranteed.
At the same time, there are laws dealing with incitement to hatred and racial vilification.
This edition of Charlie Hebdo has sold out and the presses are being readied for more. The editor, Stephane Charbonnier, says strict Muslims don't have to read it.
Any penalties for incitement are outweighed by publicity, sales and general drawing attention to themselves - all in the name of press freedom.
In Australia there are no strong inhibitions or serious sanctions that would prevent media organisations publishing pictures of Duchess Kate's bosoms or cartoons of a nude Muhammad. Yet no one has.
The Media Alliance code of ethics baldly says: ''Respect private grief and personal privacy.''
The Australian Press Council has set out a statement of privacy principles and in 2010 upheld a complaint against a Bundaberg newspaper that published a photo of a woman at her front door while the snapper was on the street outside.
So what? Nothing happened, other than a mea culpa published in the newspaper.
The Australian Communications and Media Authority showed how commercial television could wangle its way around the code of practice with respect to the invasion of the former NSW minister David Campbell's privacy, by pulling out a dodgy ''public interest'' card.
As the federal cabinet sits down to consider remedies for invasions of privacy, it might reflect that restraint in a digital world is elusive and that what sounds like noble remedies for hurtful behaviour can now be freely mocked.