Do Paparazzi Photos Of Meghan Markle Violate B.C. Privacy Laws?

Prince Harry and Meghan Markle were willing to break tradition, risk their public goodwill, and oppose the Queen herself to establish a private life away from a racist press and invasive photographers.

But will British Columbia actually offer them a paparazzi-free life?

Meghan had only been back in Canada for a few days before a photo emerged of her walking through a Vancouver Island park with her baby and two dogs. The photo made several newspapers in the U.K., and swiftly prompted the threat of legal action from the couple.

The BBC reported that lawyers for the couple say the photographers hid in a bush to get the photos, which Meghan did not consent to.

Lawyers also say photographers have used long-range lenses to photograph the inside of their house, and that paparazzi have been camped out in front of the home for days.

“There are serious safety concerns about how the paparazzi are driving and the risk to life they pose,” Harry and Meghan’s cease and desist letter said, according to TMZ. The couple said they would sue any outlet that purchased or published the photos.

Their presence in B.C. will likely test the province’s privacy laws, which have very rarely been challenged, one lawyer said.

Vancouver lawyer Roger McConchie specializes in defamation and privacy issues, but privacy accounts for only “a minute fraction” of his practice, he told HuffPost Canada. There’s very little case law on the subject. 

Public figures don’t have a ton of rights in public places

McConchie doesn’t think Meghan and Harry would be likely to win a case stating that the park photos were an invasion of their privacy.

Unlike many other Canadian provinces, B.C. does have a Privacy Act, which states that you can sue someone who willingly violates your privacy without having to prove damages.

But the bad news for Harry and Meghan is that one of the exceptions to that rule is designed in favour of the news media.

“Publishing something is not a violation of privacy if it’s in the public interest  or is considered fair comment,” McConchie explained. Because Meghan Markle is a public figure in a public place, in other words, the photographers were within their right to take her photo, and to publish it.

And if the photographers did in fact hide in the bushes and jump out of her, as the couple alleges — would that be grounds for a successful lawsuit?

“I doubt it,” McConchie said. “If they’re on a public pathway in a public forest, or in a public park, it doesn’t matter if someone was hiding behind a bush.”

They’d have grounds if the photographer had jumped out and Meghan had fallen, for instance — but that would be considered harassment or another charge, not invasion of privacy. 

Expectation of privacy

But, McConchie said the other issues raised in the letter might be a different story.

A photographer aiming a long-range lens at their house could potentially constitute an unjustifiable violation of privacy, because “there would be an expectation of privacy in your own premises,” he said. The more obscure the photo, the more unjustifiable it becomes — in other words, a photo of the house that displays something a passerby would see with their own eyes from the sidewalk might be OK, but a photo that shows something only visible through a specialized lens would not be.

Even so, it wouldn’t be an open-and-shut case, McConchie said, just because there’s so little case law in B.C. surrounding privacy issues. There’s so little precedent in this area that it’s hard to know how the case might proceed.

Surveillance and eavesdropping

Meghan and Harry might also be able to go after the photographers camped out in front of their house. If they really are a nonstop presence, “that could arguably constitute surveillance,” McConchie said. Surveillance and eavesdropping are both considered privacy violations under the Privacy Act.

“If surveillance is around the clock seven days a week, and is an obvious irritant,” a judge might find that the couple’s “privacy has been unjustifiably infringed,” he explained.

And beyond that, those photographers would need to be very careful about what they’re recording. “If the cameras are recording not only image but sound, there could be eavesdropping,” McConchie said.

Depending what kind of recording equipment is being used, and what’s being captured, the paparazzi could be in danger of violating not only provincial privacy rules, but also the criminal code, he said.

If their microphones are technologically advanced and designed to pick up sound a passerby wouldn’t reasonably be able to overhear, that could be considered an illegal electronic interception of private communications — a federal crime punishable by up to five years in prison.

Royals unlikely to make much money

Damages are typically low for invasion of privacy claims, McConchie said. But it’s likely money isn’t Harry and Meghan’s end goal — they pledged to donate any earnings they get from suing a British tabloid group to an anti-bullying charity. The couple has been explicit in their antipathy towards press intrusion.

“I’ve seen what happens when someone I love is commoditised to the point that they are no longer treated or seen as a real person,” Harry wrote in a letter explaining the tabloid lawsuit in October, seemingly referencing the 1997 death of his mother, Princess Diana, whose car crashed after she was being pursued by the paparazzi in Paris in 1997.

New era of royal coverage

As royal expert Patricia Treble pointed out on Twitter, the Vancouver Island park picture represents a departure from the previously-agreed upon royal coverage rules. The “royal rota” system involved a few reporters who shared information and photographs across different outlets. There was an unwritten rule among rota members not to publish photos of children that weren’t at specifically sanctioned events, as Treble explained.

Harry and Meghan have been clear about wanting out of the rota system, which “predates the dramatic transformation of news reporting in the digital age,” they wrote on their website. The outlets with rota access include many papers the couple have sparred with, including The Daily Mail and The Sun, both of which published the Vancouver Island photos.

As with so many other aspects of their break from the Royal Family, it’s unclear how the split from the royal rota will affect media coverage. But Harry and Meghan have clearly judged that leaving the rota system is better than the alternative.

Media scrutiny will likely die down soon: lawyer

McConchie said that while Harry and Meghan sightings in B.C. are novel now, he believes their newsworthiness will likely only decrease as time goes on. Because the couple aren’t surrounded by other celebrities the way they might be if they lived in Los Angeles, he doesn’t know that Harry and Meghan alone will be lucrative enough for photographers to continue to camp out in front of their house.

In an area inhabited by more celebrities, he said, where photographers could move down the street to find someone else, privacy might be more elusive — but he thinks it’s unlikely there will be a new paparazzi boom on Vancouver Island.

“To use a hunting analogy, if you’re going hunting for deer and there’s only one deer in the province of British Columbia and there’s 3,000 deer in the province of Saskatchewan, you’re going to Saskatchewan.”

Also on HuffPost: