If one thing was abundantly clear in the statement from the Duke and Duchess of Sussex’s spokesman, it was that their campaign to influence press privacy laws has just been soft launched in the United States. The deputy commissioner of the NYPD said there were “no reported collisions” on Tuesday; the Mayor found it “hard to believe” there had been a two-hour high speed chase through Manhattan.
For the Duke and Duchess, however, publishing any photographs taken during their journey through New York City would only encourage “a highly intrusive practice”. “Intrusion”, though, is in the eye of the beholder, and I suspect they are about to discover that the American take on how much privacy you can expect to have as a celebrity is somewhat at odds with theirs.
First of all, the US legal system is not a single entity – what might be considered a reasonable right to privacy in the state of California is not treated with the same weight in New York. It means that in Los Angeles, paparazzi behaviour is relatively controlled (though press photographers are still far less restricted than they are in the UK). A paparazzo can’t physically harass you, nor could they use a lens to shrink your zone of privacy unreasonably. It would be a violation, for example, to use a long lens to photograph you on your private estate from the street. But beyond that, you don’t have a right to privacy in a public place. In New York City, the state constitution doesn’t uphold privacy at all.
Living in Los Angeles doesn’t make Harry and Meghan immune from being photographed. When they first moved to LA, the Duchess was photographed regularly taking their son Archie to school. She would continually send legal letters saying she was going about her private business being a mother and the pictures were unfair. In America, we don’t have a sense that you can be a private mother when you’re simply walking around on the street doing something.
If you’re walking down the street in the UK, you have some privacy rights that can preclude the media from photographing you or reporting what you are doing. We don’t have that same law. If you’re on the street in America, you’re on the street in America. You’re a public person and it’s a public place. For many years I have lived around the corner from Sarah Jessica Parker who used to walk her children to school every day. Every day there were paparazzi who she knew by name. They’d say hello, she’d say hello, she’d walk by.
The same rules apply if you’re in a car. In New York, where Tuesday’s so-called car chase is alleged to have taken place, if you’re in a car with the windows blackened and someone intrudes on your space, that probably would be a privacy invasion, but it might not be. It depends who you are and what you’re doing in the car. The privacy tort in the United States is infused with the First Amendment, which means that if you can prove there is a public interest in a photo being published, there is no invasion of privacy.
If the Duke and Duchess did want to embark on a campaign against what they perceive to be press intrusion, I’d imagine they would have to attack the methods, not go after the news agencies themselves. Words and pictures are protected by the First Amendment, but the methods used to gather that information are not. You can be penalised for trespassing in the United States, for example, so they could attack the use of certain kinds of cameras, or drones, or try to enforce some official measurement of what could be considered a reasonable sphere of physical privacy.
In essence, they’d need to try to change the rules around news gathering rather than appeal – as other celebrities, like the actress Kristen Bell has – to the publishers themselves. In 2013, Bell and her husband tried to convince publishers to use more editorial discretion when choosing to buy photos of celebrities with their children. The Sussexes would also, I think, need the support of an awful lot of other celebrities. If they are indeed going to do this, it’ll be interesting to see who among their famous friends will line up alongside them.
I imagine they will find they have much more success in California than in New York. New York courts are disinclined to create new privacy torts, and the California courts are generally more inclined to protect celebrities than the New York courts are. In 2013, the actresses Jennifer Garner and Halle Berry backed a bill (successfully signed into California law) to introduce new laws aimed at protecting the children of celebrities from the activities of paparazzi photographers. In the New York state legislature, meanwhile, there is a current bill to restrict paparazzi behaviour around the children of celebrities.
What America would make of a British prince attempting to influence its privacy laws remains to be seen. For some, the hubris of two people who have made a tell-all Netflix programme wanting to restrict the press won’t sit well – for others, the love for Prince Harry runs deep enough to carry them through. I’m just not sure that love necessarily extends to the United States legal system.
How press privacy laws differ between the US and the UK. How press privacy laws differ between the US and the UK