By Kevin Smith
For a glorious, fleeting period spanning late elementary school and the early teenage years, the stylish response whenever objections were voiced regarding one’s playground conduct was to invite litigation.
Well… kind of. But not really. While the response “Oh yeah? So sue me!” was thrown around with casual off-handedness, it was of course a taunt. You don’t like it? So sue me. What are you going to do about it? I took your place at the lunch table? So sue me. I stole your snacks? So sue me. Pretty heady stuff, you’ll agree. Indeed, it’s hardly surprising that this flurry of prepubescent litigiousness was exciting enough to convince a few of those involved to pursue a professional career in the field.
In contract law, there’s a concept that we might call “calculated breach,” which basically involves one party deciding that it would gain more from breaking the terms of their contract with another party than by meeting them. It happens a lot in construction disputes: one party will realise it’s going to cost them a huge amount to get a project finished on time, and that it would be financially advantageous to refuse to fulfil their side of the bargain, accepting that they’ll probably have proceedings brought against them. In fact, there’s a whole area of case law on the issue of one party paying another party extra to do what that party already said they’d do. Fundamentally though, calculated breach is adults telling each other, “so sue me,” save for that where we as kids meant, “what are you going to do about it?”, the adults mean, “no seriously, take me to court. Yes, I’ve breached the contract. In fact, it’s to my advantage not to fulfil my end of the bargain, even if that means paying you damages.” There’s a strong case to be made that calculated breach is, to use the technical legal term, a pretty dick-ish move. Needless to say, it happens all the time.
For the past few weeks, the media has been dominated by news and commentary on the topless photos published of Kate, Duchess of Cambridge. Most of this has centred on issues of press freedom, the right to and expectation of privacy, the role and ethics of the paparazzi, and whether normal (UK) attitudes towards public nudity apply in the freewheeling, breast-baring continental European context (“It’s totally normal!” various editors have shrugged, including Laurence Pieau, of Closer (pictured), as if these photos were no different from any others of the royal couple.)
It’s incredible that it could really be necessary to point out that these photos are, in fact, rather different. All the same, indulge me momentarily. The images might well be something seen every day on the beaches of the Mediterranean. They may certainly be of a “young couple in love” – although the cover screaming “Oh my God!” and the article title “Sex et sun en Provence!” somewhat undermines the claim that these are nothing more than tasteful shots of domestic bliss. None of this changes the fact that they were also taken from roughly a half-mile away, possibly as a result of someone trespassing on private property, and in a moment where the Duchess cannot realistically have had any idea that she was being or would be photographed. John Major was right when he claimed that the photos were the work of “peeping Toms” rather than legitimate journalists. He’s got a good point: if people told us they’d hid in the bushes using a telescope to spy from 800 yards away on a young woman partially undressing, surely we’d ridicule and dismiss them as voyeuristic perverts, and tell them to stop grinning and to take their hands out of their pockets while they were at it. How can changing the telescope to a camera and publishing the photos transform the result into “journalism”?
Furthermore, French privacy law on this point is clear. By way of background, the French interpret the right to privacy as entitling anyone, irrespective of rank, from priest to pauper to Président, to oppose the dissemination of his or her picture without the express permission of the person concerned. A classic example is a photograph of a monarch that showed her away from public life (The Farah Diba case – judgment of the Court de Cassation (pictured, below), 13 April 1988 – summary here). The topless photographs of the Duchess of Cambridge are, if anything, an even more clear-cut violation.
Under Article 226-1.2 of the French Penal Code (see footnote above), it is an offence, “intentionally and by means of any process whatsoever, to infringe private life of another [person]… by taking, recording or transmitting, without his or her consent, the picture of a person who is in a private place.” Such consent “is presumed where the recording or the taking of the picture takes place in a meeting and openly and publicly.” Article 226-2 prescribes the same penalties for publishing or making public knowledge the material caught by the previous section. So much for the letter of the law: as for the spirit, the purpose of these provisions is clearly to curb the behaviour of the paparazzi. Under the law, the case would seem to be ouvert et fermé, as the French definitely wouldn’t say.
That’s why all the talk about this being a free-speech and privacy issue is little more than smoke and fluff. The responsible editors trot out these illusionary arguments as a distraction, and the pundits miss the point when they take the bait.
Rather, the issue is better viewed as a case of calculated breach. It is suggested here that the editors knew darn well that what they were doing was a breach of privacy – they simply felt the money they’d rake in from the increased sales provided by the scandal would far outweigh whatever they might eventually pay in damages. Far from ever engaging with the moral principles of free speech and what privacy public figures realistically can expect, the decision was simply a cynical calculation: “Sex and scandal sell. Titillation talks at the till. So sue me.”
In the context of a purely contractual dispute, calculated breach is understandable. It might be morally dubious, if we believe there is significance in giving your word, value in sticking to your agreements, and so on. But whether that kind of interpersonal morality applies to dealings between companies is debatable at best. Financially, and certainly legally, it’s pretty straightforward: there was a contract for certain value, either the contract itself or the underlying legal framework provides for what happens when it isn’t fulfilled, and the breaching party feels that it would be cheaper to break the contract – accepting that damages flowing from litigation are never perfectly predictable – than to keep it. In certain instances, one could even make the case that company directors would be irresponsible not to break a contract, if completing it would be prohibitively expensive.
That kind of logic is defensible when both parties are dealing in the same currency. We know what the decision will cost the other party. There’s no hard feelings – just simple sums. Cash is cash. It’s a pretty simple calculus for a court to perform. It’s another thing entirely, however, when the damage to the other party – the “harm” done – is of a fundamentally different nature to the benefit being gained. If it’s right to view the decision to publish the photos through the lens of calculated breach, then the decision is particularly reprehensible because the editors can’t possibly have been able to consider the “damage” done. The value of increased sales is measured in a different “currency” than Kate’s reputation, dignity, and feelings, and there’s no exchange rate.
The hope here is that the French courts throw the book at the editors who decided – privacy laws be damned – that the potential benefits to their bottom line were worth getting taken to court over. The alternative is to implicitly sanction any kind of behaviour that one side thinks is “worth” paying a penalty for. If, even factoring in the penalty, they still come out ahead, then why not go for it?
There are always going to be grey areas where the line blurs between legitimate publication by a free press and individuals’ reasonable expectations of privacy. It’s for these “reasonable disagreements” that we have “reasonable” damages for invasion of privacy or libel, if those charges can be proven.
I don’t think this is one of those cases of “reasonable disagreement,” though. French law couldn’t be clearer on the point. The attitude implied in the publication of the photos in question is cavalier in the extreme and reckless with kinds of currency – reputation, privacy, body image – that can’t possibly be appraised. That’s why the only option for the courts is to make it clear that cynical decisions such as these won’t be worth it. In the same way that we have amplified penalties for “aggravated” versions of crimes such as assault, we should provide for “aggravated” invasion of privacy at times where there can have been no reasonable belief in the legality of a publication – effectively, these “calculated breach” type instances. The court should not only award Kate all the profits earned from the sales of the issue in question, but grant additional punitive damages. If it’s established that the photos were procured through criminal means, then the strongest punishment available should be doled out to the people involved, including the editors who bought them.
A free press is rightly cited as one of the pillars of a democratic society, but press freedom, and freedom of speech in general, isn’t unlimited, and nor should it be. And like any right, it comes with responsibilities too. One of those responsibilities for people disseminating information publicly is to reject any material that by its content or provenance clearly invades the privacy of another. The “calculated breach” logic, where one party decides it’s worth it to knowingly break the law, can’t be allowed to apply here, because it’s impossible to compare what such a breach is “worth” to both sides. If the decision is a close call, then the courts will judge, with regular damages where appropriate. But if the finding is that no reasonable person could have deemed the decision defensible in law, then damages should be exponentially greater. To encourage free speech in journalism is to our great advantage. We allow editors to shrug “so sue me!” at our peril.
 Cas transparent, for the pedantic among you.