Prince Harry and The Sun: 5 reasons why it's a debate naked of the realities

The Sun’s decision to publish photographs of Prince Harry taken in Las Vegas when he was naked has stimulated an excited but ridiculous debate.

Here are five reasons why it is couched in absurdity.

1. The underwhelming nature of the photos.

Let’s face it, the photographs are tame. They are both poorly-lit and grainy. Prince Harry is facing away from the camera. It could be anyone. In one he even appears to be so bored that he’s staring at the TV.

Fundamentally, his genitals are not displayed in either photograph. If one is offered naked photographs one expects to see genitalia – even if it is blacked out for the purposes of taste and decency. These photos don’t need any black boxes.

Because the photographs are tame there is nothing in them which is harmful to Prince Harry. Embarrassing perhaps, but not damaging.

As a result the debate has focused not on the content on the photographs but on the fact of their existence. In other words, we have the bizarre situation where the issue about how and why the photographs came to be taken is more important than what the photographs actually show.

2. Many of those participating in the debate have not seen the photographs.

Imagine I asked you a question: Should I publish a cartoon I have drawn? I wont show you the cartoon, but I will tell you it is a joke about the Pope.

If you were sensible you’d say: How can I tell you whether you should publish it without seeing it?

The cartoon might be extremely offensive or it could be tame. It might or might not be funny. It could be clever or perhaps just stupid. Maybe it has artistic merit or maybe it’s just a stickman with an arrow pointing to it saying ‘The Pope’.

Without seeing it, you’d never know any of these things and so you couldn’t contribute anything helpful to the debate.

People that haven’t seen the photographs of Prince Harry can’t judge the extent to which they infringe his privacy. So they can’t contribute to the debate in any meaningful sense. It is as simple as that.

3. The legality of the publication.

At the present time, no one knows whether the photographs infringe Prince Harry’s legal right to privacy. The reason no one knows is because in the UK our privacy laws are vague and fact-sensitive and determined by two questions:

(1) Did Prince Harry have a reasonable expectation of privacy concerning the photographs? And if he does;

(2) Does the public interest in publishing the photographs outweigh Prince Harry’s right to privacy?

There are a number of arguments that could be deployed in court about the expectation of privacy. For example it could be said that once the photographs were accessed extensively online Prince Harry lost his expectation of privacy. Conversely it could be said that such photographs are always private.

Some commentators are running the ‘just because The Sun can doesn’t mean they should’ argument. But that implies that publication of the photographs is legally sound – and clearly no one knows whether they are yet.

4. The Sun’s reasoning has been largely ignored.

As for ‘The Sun shouldn’t do it’ argument: It’s an argument about editorial decisions. The same people probably think The Sun should abandon Page 3 because it’s tasteless and degrading to women. But those people don’t make the decisions – and they don’t have to buy the newspaper. The least we can do before judging The Sun is to look at their reasons for publishing the photographs.

Is it just to boost their circulation? Unlikely. The Sun is an incredibly wealthy newspaper and a one-day circulation boost will have little effect on their annual profit.

The Sun say they are making a point – that it is ridiculous that UK newspapers can’t publish pictures that are freely available on the internet especially when they inform the public debate.

Surely The Sun are right. If one can’t debate about the photographs and the effect of them without seeing them, then surely it is in the public interest to be shown them.

There is a clear public interest. Think back to the tale of the Emperor’s New Clothes (an emperor is conned into believing he is wearing fine new clothes but in fact he is naked). Imagine if the local newspaper published photographs of the Emperor in his new clothes during the procession through the town. Wouldn’t the newspaper have the right to do so while asking ‘Why is our Emperor appearing naked, in public?’.

The same applies here. Of course Prince Harry wasn’t naked in public, but photographs of him naked are public – so what’s the difference? Isn’t it in the public interest for The Sun to ask how this happened to our much-loved Prince?

It’s incredibly likely that those who say The Sun shouldn’t have published the photographs have actually looked at them online, including many of the hundreds that have complained to the PCC (and militant Royalists). The fact that those people have looked at the photographs online yet condemn The Sun for publishing them is wholly hypocritical. If it's alright for them to look at them why is it wrong for others to do the same? Such photographs are not the preserve of self-appointed guardians of morality.

5. The most interesting (and important) issue raised by the debate has been glossed over.

Here’s the most interesting question: How can we in the UK claim to live in a country with free press if our newspapers are unable to publish content which is freely available to British citizens online?

It's an issue that Leveson LJ must be having sleepless nights about. If he isn’t he should be. If he makes press restrictions even tougher it will only drive traffic to content produced in other countries not affected by UK regulations. But if he does too little, who is going to keep the newspapers in check?

Last year a Scottish newspaper revealed that Ryan Giggs had an injunction preventing the publication of details and the fact of his relationship with Imogen Thomas. At the time English and Welsh newspapers were bound by the injunction. So it was illegal for English newspapers to name Ryan Giggs but not for Scottish newspapers. All the while Ryan Giggs's identity was easily accessible online.

Of course the difference between the Giggs case and Prince Harry is that Giggs actually had a court order preventing publication. Prince Harry did not.

But both cases raise the same issue issue: to what extent should we prevent the publication of material that is already widely known and accessible online?

Preventing publication in such circumstances is like using a cocktail umbrella in a monsoon. Yet few would argue that we should throw in the towel and give publishers the right to publish anything they like. But where should the line be drawn?

This is the fundamental issue raised by The Sun's actions. Yet sadly it has taken backseat in a debate about a man not wearing any clothes.