'The Editor's decision can be fatal' - John McLellan's views on Irish Daily Star's publishing of the topless Duchess of Cambridge pics

With part-owner Richard Desmond seemingly determined to close the paper, if he’s not fired, O’Kane could find himself without a paper to edit by the end of the week.

Maybe the much-criticised Desmond sees this as a way of improving his standing in British public life, but given he has shown little but disdain for the British establishment this would appear unlikely.

However, since his Daily Express has almost obsessively reported in minute detail the conspiracy theories surrounding the death of Princess Diana perhaps we should not be surprised he is prepared to go to such lengths to make amends for the hurt caused to the late Princess’s daughter-in-law.

But is it necessary to close the title and take away the livelihood of scores of people who had nothing to do with the decision? And I won’t be alone in finding this somewhat hypocritical for someone who in the past made money from soft pornography.

O’Kane can be forgiven for feeling confused right now, given his paper trades almost exclusively and very successfully on a diet of showbiz tittle-tattle, and the paper has regularly reported information about British celebrities which papers here have been prevented from publishing. An injunction in the British courts is a page lead for the Irish papers. Want to know which Premier League footballer is trying to cover the tracks of his complex sex life? Read the Irish Daily Star.

So for O’Kane, publishing the Kate pictures would not have felt like a massive risk. As he has pointed out, she is not going to be Queen of Ireland, after all.

And there is a problem for the other joint-owner of the Irish Daily Star, Independent News & Media. Its Dublin Herald published the Harry pictures, so is an Irish publisher going to sit back and allow Richard Desmond to shut down a successful title or remove an editor who was giving his readers what they wanted?

And as with the pictures of Prince Harry’s naked romp in Las Vegas, the Kate pictures are not only in a French magazine and an Irish newspaper (and soon to be in an Italian magazine) but all over the internet.

Like thousands of people, all I had to do to see what the fuss was about was to google “Kate Middleton Closer” and in seconds I had full view of the now infamous grainy pictures of a topless Duchess of Cambridge.

As a reader of a media website I’ll be surprised if you too have not at least attempted to see for yourself. It takes no leap of imagination to expect that millions of people

around the world have now done the same thing as they did with the pictures Prince Harry’s strip billiards.

The two incidents have much in common yet so many significant differences and accordingly finding a consistent approach is difficult to say the least.

Harry is a young single man on the lash with his pals behaving in a very unprincely manner with people he hardly knew, shortly after frolicking in the very public hotel pool and in the process raising very serious issues about his security.

Kate, on the other hand, is a newly-married young woman enjoying a relaxing and obviously loving moment with her husband on holiday in a private chateau miles from any other member of the public.

Harry clearly compromised himself while Kate did not. Yet on both occasions much of the anger focussed on the photographers involved, either an opportunistic groupie or a determined paparazzo, who had committed a gross breach of privacy no matter the circumstances.

With the pictures available at the click of a mouse, despite any stance British newspaper editors and broadcasters take, a huge chunk of the British public will now all have seen a topless Duchess of Cambridge, whether to their delight or disgust.

In refusing to rule on over 3,000 complaints about The Sun’s publication of the Harry pictures (and I suspect more than one or two about The Drum’s decision to do the same) the Press Complaints Commission argued that it would be impossible to investigate without the consent of the injured party, but in so doing probably (but unfairly) added weight to the argument the PCC remains relatively out of touch with public sentiment.

The crux of those complaints was that the publications should be held to account for the breach of a young, single off-duty soldier’s privacy and the strong counter to that was that thanks to the internet there was no privacy left to breach and there was public interest in the behaviour of the third in line to the throne.

Had The Sun used the Kate pictures (and there is a strong argument it should have done so in order to maintain the argument for publishing the Harry snaps) would Clarence House have been so reluctant to go to the PCC? Given the widely-reported depth of the Royal Couple’s anger this seems unlikely, but where then would that have left their decision not to complain on Harry’s behalf?

The crucial difference is that of responsible behaviour. This is not 1912 and Kate did nothing wrong -- which young woman would not be horrified if pictures of her sunbathing topless in a private place with her husband became an internet sensation? And ex-PM Sir John Major’s comparison with peeping toms will find much public sympathy.

Conversely, which role model, army officer Prince of the Realm would genuinely think it appropriate to play strip billiards with total strangers?

There are similarities with the other Royal privacy cases of over 20 years ago. Diana was doing nothing inappropriate when she was snapped by a remote camera in her exercise gear in a private gym – and it cost the Daily Mirror £1 million in legal fees after the Princess took action. The Duchess of York was definitely in a private place when she was photographed topless, although there would have been a public interest defence on the basis that the mother of the Queen’s grandchildren was in a compromising situation with a man who was not her husband four years before her divorce.

And of course for Prince William, this has been an all-too painful reminder of what happened to his mother when she became the subject of intense interest from the Paparazzi on French soil.

The key test is that of public interest; the pictures of the Duchess of Cambridge are of considerable interest for the public but I find it impossible to argue their publication is in the public interest. Her behaviour is not inappropriate, she had an obvious expectation of privacy and they certainly didn’t reveal anything we didn’t know other than she likes an all-over tan. Given the interest in the way she looks, maybe that’s understandable.

What this episode again throws into sharp relief is that for all the talk of Press standards in the UK, it is impossible to regulate access to the internet and it is pointless to even consider controlling how publications and journalists in other countries operate, especially when even the notorious French privacy laws have proved ineffective on this occasion.

So too does it illustrate that just because British media won’t use such pictures of British celebrities there isn’t a world market for them.

That is not to say the instinct to publish here is not still alive, it’s just that the repercussions are too great to take the risk. Would similar pictures of Diana have been published here 25 years ago? Almost certainly. Would pictures of a topless Carla Bruni taken in France appear in a British paper? Undoubtedly.

If it hadn’t already sunk in, the Duchess of Cambridge now knows what it’s like to be one half of the world’s most famous couple, with the possible exception of the in-laws and Brad and Angelina. It means a cut-throat market for anything revelatory about them and sadly that means being more rigorous about where and when they can fully relax.

And even then there will be no guarantee they will escape the attention of determined international celebrity photographers, many of whom are Special Forces trained. Surveillance drones have more than military applications, remember.

Ultimately, the decision to publish or not comes down to individual editorial discretion and that is as it should be if we are serious about upholding a truly free Press. Even when the law is likely to be broken, as with publication of the stolen details of MPs expenses, there is always a public interest defence if the editor thinks it stands up.

So perhaps the best test of editorial decision making is in the effect on readers and advertisers. If the old and tired accusation of “you’re only trying to sell papers” still rings true, then adverse reader reaction should be the ultimate arbiter. Look what happened to The Sun on Merseyside; 23 years after Hillsborough the paper and its then editor are still apologising.

The editor’s decision is final and, as Mike O’Kane might find out, it can also be fatal.

McLellan's first piece on the situation can be read here.

Ex-Scotsman editor John McLellan is a former member of the Press Complaints Commission and is now director of communications for the Scottish Conservatives and an honorary professor in Stirling University’s media studies department.