Prince Harry pictures: Former Press Complaints Commissioner and ex-Scotsman editor John McLellan on The Sun and The Drum’s decision to publish

In fact I didn’t think any paper would dare use the pictures and for 24 hours I was right. Typically, The Sun went furthest with its stunted recreation and just as typically the usual poker -faced suspects inquired as to whether the female intern who posed did so against her wishes. Lord Leveson and the Metropolitan Police might have had rather a lot to say had that proved to be the case.

By the time The Drum magazine and The Sun had decided to publish the images, millions of people around the world and in the UK had seen them, yet the debate about whether Prince Harry’s privacy could still be broken has continued to rage and will rage again when the Press Complaints Commission (as it still is) eventually rules on the case as it now must whether Clarence House complains or not.

As many have pointed out before me in the past few days, the issue centres around whether Prince Harry has on this occasion any privacy left to breach and if there is any public interest justification in further publication.

In what seems to me a rather perverse position (as it were) some disappointingly pompous commentators have argued that as the pictures were seen by millions on the internet there could therefore be no public interest justification. Does it then follow that people without access to the internet have less right to information than those who do? Hardly democratic.

I cannot see it being defensible that privacy can be breached when millions have already seen a particular image or know something to be true, as with the Ryan Giggs super-injunction and his exposure in the Sunday Herald. Giggs might have had a technical case for breach of privacy against the paper based on European law (that the injunction did not apply in Scotland did not mean he couldn’t sue), but the chances of a successful court action were minimal when thousands of football supporters were goading him from the terraces every week.

It is perhaps instructive to look at the workings of the D-Notice committee, on which I formerly served, and how it seeks to prevent publication of information which could damage national security or put security personnel’s lives at risk. Now I can stand contradiction here, but between Harry’s dignity and the lives of servicemen and women I know which I’d put first. And as a serviceman I think I can guess Harry’s view too.

The crucial test the D-Notice system runs is whether information is already in the public domain and while there is no hard and fast definition, a rough guide is that if it comes up in the first three or four pages of an internet search then it is a fairly certain anyone interested will in all probability have access to it. There will be exceptions, but what is beyond all doubt is that the D-Notice secretariat would not dream of advising an editor not to publish if every Tom, Dick, or indeed Harry in every hamlet across the internet-linked world was in possession of the information.

So the next argument is that publication of the pictures were a prima face breach of the Prince’s privacy and there can be no public interest justification whatsoever in making them available. He is, the argument goes, a 27-year-old single serviceman on leave letting his hair down as thousands like him should be able to do. This puts Harry on a par with any member of the public and he should therefore have the same rights as any other young man. Except any other young man he isn’t and I have yet to find a persuasive argument that says there should be no public interest in the behaviour of a man who is third in line to the throne, and who is free to hop from Neckar to a free luxury suite in Vegas thanks to his position. Are we really to believe that the hotel’s owner gives such accommodation gratis to anyone who drops by? Of course not. Like it or not, for every senior member of the Royal Family, public scrutiny comes with the territory. With every privilege comes responsibility; William and Kate have learnt this, Harry has obviously still to complete the course.

The relationship between the Royal Family and the British Press has always been tense. As has been pointed out this week, details of Edward VIII’s affair with Mrs Simpson was kept from the British public although it was common knowledge across the Atlantic. Just transatlantic tourism would have put paid to that, never mind the internet. It is also worthy of note that it was when the Prime Minister and the Archbishop of Canterbury got in cahoots with the editor of The Times that Edward was forced to abdicate.

From Princess Margaret’s love life, through Prince Charles and Squidgygate to the Duchess of York’s literally toe-curling dalliance with Johnny Bryant, the public has a fascination for the affairs of the monarchy. By today’s rules, both of the latter cases would almost certainly result in severe censure by the PCC, even though they both showed all was far from well in the House of Windsor.

Two other episodes are crucial in the case of The Crown v ThePress. Firstly, the much condemned (at the time) Sunday Times stories about the unhappiness of Princess Diana, denied by Buckingham Palace at the time but for which the source turned out to be the Princess herself. Trust between Palace and Press broke down as a result.

And then there were the relatively innocent story about Prince William’s knee injury, a story which again turned out to be true. This proved pivotal because the Prince couldn’t understand how the news had leaked out, an inquiry was instigated and it led to the doors of News of the World reporter Clive Goodman and the private detective he had commissioned to hack into the Prince’s voicemails, Glenn Mulcaire. Both went to jail as a result but the extent of their hacking only became clear in 2009. By last year this had escalated to the Millie Dowler scandal, the extent of the Metropolitan Police’s failure to act on all the evidence available, the launch of the Leveson inquiry and now full circle with Leveson on the point of making his recommendation just as another Royal Press controversy blows up.

Former PCC chairman Sir Christopher Meyer has joined the fray in characteristically flamboyant style, saying that when a story is in the public interest, as this surely was, then the argument against publishing pictures which are “an adornment” to the story “is very hard to sustain”. I find it hard to disagree.

Even though Culture secretary Jeremy Hunt said he could see no justification for publication, significantly he added: “We have a free press. It is not for politicians to tell editors what to publish,” a view not shared by more than a few members of the select committee on privacy and injunctions.

So what will the new, tougher PCC do about all of this? Make The Sun and The Drum jump through hoops to justify themselves that’s for sure, but my hunch is that, while wrapped in suitable censorious language, they will not find against either publication on the basis that the story itself was in the public interest and the pictures were already so widely available that a ban on publication was ludicrous.

Lord Leveson might not like it, but if he is true to his word that he believes in a free and robust Press he might just have to swallow this bitter pill and maybe have a word with Harry’s protection officers. Aren’t they employed by the Metropolitan Police?

Ex-Scotsman editor John McLellan served as a Press Complaints Commissioner and a member of the Defence, Press and Broadcasting Committee. He is now director of communications for the Scottish Conservative Party and honorary professor of media studies at Stirling University.