Could French editor really face jail over topless Kate? Yes, but...

William and Kate would have to push for criminal prosecution – but, anyway, isn’t it too late?

BY Nigel Horne LAST UPDATED AT 13:01 ON Sun 16 Sep 2012

PRINCE WILLIAM, complaining to aides about the publication in France of topless photos of his wife Kate, is claimed to have told aides: “I want them jailed”.

And Sir John Major, the former Tory prime minister who was appointed a guardian to William following his mother Diana’s death in 1997, backed the prince when he told Andrew Marr this morning that those responsible were “peeping toms” who should be prosecuted.

Strong stuff – and, in theory, it is possible that the editor-in-chief of the French version of Closer magazine could be jailed for up to 12 months.

To achieve this, as well as suing Closer under French civil law, the Duke and Duchess of Cambridge would have to support a criminal investigation by French police into the activities of the photographer who shot the pictures and the editor who published them.

Under article 226-1.2 of the French Penal Code, it is an offence “intentionally and by means of any process whatsoever” to infringe another’s privacy by “taking, recording or transmitting, without his or her consent, the picture of a person who is in a private place”.

A “private place” is deemed to be a place which is “not open to anyone without the permission of the person who occupies it in a permanent or temporary manner”.

The royals’ lawyers, who begin their court battle tomorrow in Paris, will argue that the holiday home of Viscount Linley was absolutely a private place where William and Kate could expect to enjoy a secluded holiday. Nothing in the behaviour they display in the published photos suggests they suspected they were under surveillance.

As I reported when the story broke, Linley’s holiday home is off the beaten track and not well-known to the media. Many celebrities - from Keith Richards to David Beckham - have had houses in Provence and on the Cote d’Azur where paparazzi might be expected to gather at the gates when the stars are in residence. Linley’s house is not one of them.

The photographer – as yet unnamed – and the female editor of Closer – Laurence Pieau – will argue, as she has already, that because the house and its sun terrace are “visible” from a public road, then the Duchess was in effect stripping off in public and should expect the same treatment as another celebrity.

But what does “visible” mean? British media have established that the spot on the one-lane public road from which the photographer is thought to have taken his or her pictures is somewhere between 0.5 and 0.8 miles away from Linley’s house.

To the naked eye, the house is a pinprick in the distance. Only through a powerful telephoto lens can it said to be “visible”.

If the magazine were to be successfully prosecuted under article 226, it could be fined €45,000 and the editor could be jailed for up to a year. (Liability devolves step by step once the photographs are published, making the editor ultimately responsible.)

For a criminal case to proceed, the complaint would have to made by the victims – William and Kate – or their legal representatives. According to reports in The Sunday Mirror among others, the royal couple “would be happy” to support such a prosecution.

But whether a judge in proudly republican France would he happy to jail a magazine editor for upsetting a member of Britain’s royal family is debatable.

Just winning a civil case could be hard enough, let alone pushing for a criminal prosecution.

French media lawyer Jean Frederic Gaultier of Olswangs told The Guardian: “They were in a private place, so in my view this was a breach of law."

But Duncan Lamont, a partner in the media team at Charles Russell LLP, said the royals face a tough legal battle to prove it was an invasion of privacy.

"It is not quite a private house. The chateau is rented out and there may be debate as to how truly private it was and whether the paparazzi were on a public thoroughfare," said Lamont. "These issues can take years to resolve."

One thing all lawyers interviewed over the weekend appear to be agreed on is that it is unheard-of for an editor to be jailed and that French celebrity magazines weigh up the potential revenue from increased circulation when they expose themselves to a fine.

The publication of the photos comes at a time when the French press is becoming increasingly cheeky. The days of media restraint that enabled politicians to keep their mistresses and love children well-guarded secrets are gone.

Earlier this month, Valérie Trierweiler, live-in-companion of President Hollande, won her case against the French magazine VSD after it published photos of her in her bathing suit taken while on holiday.

The judge ruled that there was “no public interest in showing [images] of the companion of the president of the Republic… against her will.”

However, Trierweiler was awarded only €2,000 and the editor of VSD, Philippe Bourbeillon, is still a free man.

The question now is whether William and Kate and their lawyers jumped on this quickly enough. With the Italian magazine Chi due to publish 50 more photos on Monday, has the horse already bolted? As The Sunday Times reports today, the pictures “are aquiring a life of their own – far beyond the jurisdiction of French courts”. · 

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