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- Prince Harry and Meghan Markle have asked their lawyers to warn media outlets of legal action after paparazzi captured a photo of the duchess walking her dogs and carrying baby Archie on Monday, according to the BBC.
- Legal experts in Canada told Insider that the country is not as used to paparazzi culture and that Prince Harry and Markle’s situation represented “new territory” for Canadian media and privacy laws.
- On Saturday, a Buckingham Palace representative announced that the couple would “step back” from royal duties starting in the spring.
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After a paparazzi photo of Meghan Markle taken in Canada on Monday circulated in the media, Markle and Prince Harry reportedly threatened legal action.
The Daily Mail was among the UK-based publications that published a photo of Markle holding baby Archie and walking her dogs, Guy and Oz, in Horth Hill Regional Park on Vancouver Island, British Columbia, according to the BBC.
The BBC reported that Markle’s lawyers said she did not consent to the photos taken of her in the park. They also said photographers had tried to take pictures inside Harry and Markle’s property on Vancouver Island using long-range lenses.
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Markle has been in Canada since shortly after the couple announced on January 8 that they would take a “step back” from royal life.
On Saturday, Buckingham Palace released a statement detailing the agreement between the Queen, Harry, and Markle, that starting in the spring, the couple will cease their royal duties, stop using their royal titles, and no longer formally represent the Queen.
Canadian experts told Insider that it’s possible Harry and Markle could argue that the paparazzi photo was an invasion of privacy
David Fraser, a privacy lawyer at McInnes Cooper in Halifax, Nova Scotia, told Insider that based on initial reports of Harry and Markle’s threat of legal action, he thought it was possible the couple may argue that their privacy was invaded when paparazzi took a picture of Markle in the Vancouver Island park.
Fraser said that British Columbia has a provincial privacy law that contains what’s known as the Privacy Act, which allows people to sue for invasion of privacy.
“The law is relatively undefined as to the parameters and extent, but it would be informed by the reasonable expectation of privacy,” Fraser said.
In other words, the Privacy Act does not strictly define what situations can be considered an invasion of privacy. Fraser said the Canadian courts largely base invasion-of-privacy rulings on the circumstance.
“Most people would conclude you have a reduced expectation of privacy when you’re in a public place,” Fraser said. “Canadian courts have been trending to say it’s not that you have no expectation of privacy, but your privacy is very circumstance-specific.”
Fraser said he thought that based on the BBC’s report, which said Markle’s lawyers said photographers had tried to capture the interior of Harry and Markle’s home, it’s possible they may also argue that they were subjects of surveillance.
“If I was the lawyer for the Sussexes writing a letter to the paparazzi or media, I would probably be more leaning strongly toward arguing for the surveillance aspect,” Fraser said. “If there have been attempts to photograph with long lenses into the home in which they’re residing, that would very likely be an unreasonable invasion of someone’s privacy.”
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Dean Jobb, the author of “Media Law for Canadian Journalists” and a professor of media law, journalism ethics, and feature writing at the University of King’s College in Halifax, told Insider that he thought Harry and Markle may face an obstacle in arguing that their privacy was invaded in the park.
“They have got quite an obstacle to scale there in the fact that it’s a public space,” Jobb said. “There are certainly no prohibitions against taking photos of someone in a public space.”
Jobb said that in regard to the use of long-range lenses to photograph inside the couple’s home, there are criminal statutes to protect against voyeurism. He added that Canada also has statutes to protect people from unethical news-gathering methods, including harassment.
“There are some potential behaviors that you can’t justify as news-gatherers. For example, no journalist has the right to harass someone,” Jobb said. “You might need to talk to a source, but you can’t keep phoning them where it would be considered the crime of harassing phone calls.”
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Both experts agreed that regardless of the outcome of any legal action by Harry and Markle, their situation is ‘new territory’ for Canada, which has less of a paparazzi culture than the UK
“This is new territory in terms of privacy law and media law in Canada,” Jobb said.
“The kind of aggressive paparazzi coverage that the royals attract is not unheard of in Canada, but it’s not as common here,” Jobb continued. “That means there is a different landscape here than may have been the case in Britain.”
Fraser added that Harry and Markle’s situation is unique because Canada’s privacy laws have largely not been used with royals or celebrities.
“One thing worth noting is that while we have these laws, they haven’t been used that often, and they have not been used in the context of celebrities, royals, and public figures – perhaps because we do not have the same paparazzi culture in Canada,” Fraser said.
Fraser added that he thought Canadians would be sympathetic to Harry and Markle’s move to Canada.
“I think many people would be sensitive and sympathetic with the Sussexes coming to Canada, which was, as I understand it, in order to avoid a repeat of what happened to Diana,” Fraser said. “It seems to me that the principal element that has prompted their radical change of lifestyle and radical change of status is because of the spotlight.”
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The couple’s threat of legal action following a paparazzi photo aligns with their continuous battle with the press
“Fighting for what they believe in. The Sussexes have instructed UK-based lawyers to issue a legal warning over long-lens paparazzi photos taken of Duchess Meghan out in Canada yesterday,” Omid Scobie, the royal editor at large at Harper’s Bazaar US, tweeted on Tuesday.
Fighting for what they believe in. The Sussexes have instructed UK-based lawyers to issue a legal warning over long-lens paparazzi photos taken of Duchess Meghan out in Canada yesterday.
— Omid Scobie (@scobie) January 21, 2020
When Harry and Markle first announced they would take a “step back” from royal life, they made clear that they would take a new approach to their relationship with the media, indicating that their view of the press played a major role in their decision.
The Sussex Royal website detailed that new approach, which includes picking reporters who can cover their engagements and no longer participating in the “royal rota” system that gives reporters from British publications access to report on the family’s engagements.
It’s also not the first time the couple has taken or threatened legal action against the press. Harry and Markle have filed lawsuits against the parent company of the Daily Mail and the publishers of The Sun and the Daily Mirror.
UK lawyers and media-law experts did not immediately respond to Insider’s request for comment. Representatives for the Duke and Duchess of Sussex also did not immediately respond to Insider’s request for comment.
- Read more:
- Everything we know about what’s next for Prince Harry and Meghan Markle as they try to become ‘regular’ citizens in Canada
- Camilla, Duchess of Cornwall was asked if she’ll miss Harry and Meghan, and her facial expression says everything
- 20 stunning photos of Canada’s Vancouver Island show why Prince Harry and Meghan Markle should stay there for good
- How the royal family will change now that Prince Harry and Meghan Markle are giving up their titles