The Kate Debate: How private are your private parts? - CNN

By Graham Winch

updated 2:19 PM EDT, Mon September 17, 2012

Attorneys for the royal family will be in a Paris court Monday trying to prevent the further publication of Kate Middleton’s topless photos after pictures of the Duchess were released by a European tabloid, causing an international firestorm.

A St. James Palace spokesperson says the attorneys want an injunction stopping other tabloids from printing the pictures. The lawyers are also asking that the pictures be taken offline. Damages are also part of their demands.

The editor-in-chief for a French magazine which published the photos, “Closer,” has defended the pictures, saying they were taken from a public road near the remote country home where the duchess was vacationing. CNN/HLN are not showing the photos.

Read more: In Session legal experts say the royals may have a strong legal argument

French privacy laws provide more protection than American laws.

So what protections do Americans have if something like this happens to you? Here's a rundown of the issues:

Invasion of Privacy

Generally speaking, the First Amendment allows people in public places to take pictures. If you can see it, you can shoot it. However, if someone uses a telephoto lens to peer into private property it may be a breach of privacy, and could be grounds for a lawsuit. It all depends on whether someone on that private property had a reasonable expectation of privacy. For example, if private property is open to the public, like a restaurant, there isn’t generally a reasonable expectation of privacy. Therefore, photos taken with a telephoto lens could be legal. It is also important to understand that laws vary from state to state, and this may not apply in every jurisdiction.

California law gives greater privacy protections than most states, because of its many celebrity constituents. Courts have also been known to be harsher on the paparazzi in California and hand out harsher fines. For example, Jennifer Aniston was awarded $550,000 and an apology from a photographer who used a high-powered telephoto lens to take a picture of her in her backyard wearing only underwear.

In 2009, Governor Arnold Schwarzenegger signed a law that makes it a crime for tabloids to take or sell unauthorized photos of celebrities in “personal or familial activity.” Fines for violating this crime can reach $50,000.

Trespass

If someone comes onto your private property to take photos, it’s not only an invasion of privacy, but also a trespass. This could be grounds for a lawsuit, and it may also be criminal activity.

Right to Publicity

Generally, the right of publicity is the right to control the commercial use of your identity such as your name, image and likeness. For example, this means that businesses can’t use your likeness in commercials without your permission. This may seem like it only applies to celebrities, but it applies to everyone. It is common for schools to ask parents to waive their child’s right to privacy for promotional events. It is also important to understand that the right of publicity does not apply to the press because of the First Amendment.