Kate Middleton’s legal team are said to be looking at legal remedies available to curtail the excesses of the paparazzi.

The Protection from Harassment Act 1997 is a starting point: this makes it a criminal offence to breach a civil injunction ordered under the Act “without reasonable excuse”. How easy, though, would it be to obtain such an injunction — and what excesses would it curb? Courts will balance the respective interests of the parties, looking at both justice and equity. Middleton has a right to respect for her private life under Article 8 of the Convention of Human Rights; the press has rights to freedom of expression under Article 10.

Middleton will need to prove that the actions of the paparazzi amount or could amount to harassment: the test is whether “. . . a reasonable person in possession of the same information (as the paparazzi) would think the course of conduct amounted to harassment of the other”. The test is a hybrid subjective/objective one.

In their defence the paparazzi can argue under the Act that “in the particular circumstances the pursuit of the course of conduct was reasonable”.

Then, above this, is the common law on the public highway and public pavements. All or most paparazzi behaviour seems to have been on public land; such behaviour is not technically “protests” entitled to protection under the convention. So when outside her house, they could be said to be picketing Middleton, and when in persistent pursuit described as stalking.

The common law right to use the public highway and the footpaths abutting it is generally limited to “passing and repassing” and in DPP v Jones, the House of Lords made clear that this principle still applied and that behaviour amounting to a nuisance could not rely on general rights conferred by the convention.

Courts will also bear in mind that Middleton has not coveted publicity and that the entire purpose of the paparazzi is to obtain photographs in provocative circumstances. The “reasonable man” would no doubt conclude that this benefits the photographers who might receive five-figure sums and any newspapers (other than, for example, News International which has banned paparazzi pictures) who hope to boost their circulations.

To allow a relentless campaign by the paparazzi cannot be in the public interest. In my view, courts are likely to protect her right to respect for her private life. Obtaining an injunction under the Act would enable boundaries to be set, a breach of which becomes an arrestable offence, giving effective sanctions.

As to the future, Middleton and Prince William could agree to be regularly photographed on the understanding that the paparazzi expressly agree to leave them alone. That is the kind of balance that the court would seek to achieve.







Tim Lawson-Cruttenden helped to draft the Protection from Harassment Act 1997 and co-authors Blackstone’s Guide to that Act

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