Published on September 11, 2017 by Laura

Welcome to another Lawyer Portal weekly news summary. This week’s post will cover the legal news stories from 4th September 2017 to 10th September 2017. This week the Duke and Duchess of Cambridge have been awarded £92k damages over topless photos published in a magazine, the first conviction has been handed down under new revenge porn law in Scotland, the head of the EFTA (European Free Trade Association) court has promoted the so-called Norway model as a permanent solution to Brexit.

A French court has ordered compensation to be paid to the Duke and Duchess of Cambridge for hurt caused by pictures of Kate sunbathing topless which were published in French magazine, Closer. The couple have received £92k in damages and whilst this is the highest amount ever awarded in a privacy case in France, it is much less than the £1.4million the couple originally wanted. This was the conclusion of five years of legal proceedings.

The case dated back to September 2012 when William and Catherine were pictured relaxing on the terrace of a chateau belonging to William’s cousin in the southern region of Provence. Long-lensed cameras were used to capture the Princess sunbathing. The couple considered £1.4million (€1.5million) appropriate compensation for the embarrassment caused by the photographs being distributed worldwide. They also sought the equivalent of £42,000 from the local newspaper La Provence, which first published the pictures five years ago. Neither of the Royals have attended any of the court sessions over the years however Prince William presented statements attacking the paparazzi expressing in May that the impact of the topless photographs was ‘all the more painful given the harassment linked to the death of his mother, Diana, Princess of Wales.

Six defendants were in the dock as judges in Nanterre ordered Closer to pay the damages. Editor of Closer, Laurence Piea and director of the Mondadori group which publishes the magazine, Ernest Mauria were fined £42,000 each. Both could have been sent to prison for up to a year. The photographers involved were accused of invading privacy and complicity. Agency photographers Cyril Moreau and Dominique Jacovides were fined £4500 each. Local photographer Valerie Suau of La Provence was fined just over £900. The sixth defendant was the publishing director of La Provence at the time, Marc Auburtin, who was told to pay £2750 compensation directly to the royal couple.

A man has been ordered to pay compensation to his victim after he receives the first conviction under a new law designed to crack down on ‘revenge porn.’ Kenneth Robinson of Blyth in Northumberland must pay £200 compensation to his former partner after he threatened to upload a video of her online. He was also given an order banning him from approaching or contacting his victim.

This is the first conviction handed down in a Scottish court under Section 2(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 as this section only came into full force on 3rd July 2017.

Defence lawyer Ed Hulme told Jedburgh Sheriff Court, where Robinson plead guilty to the offence, that his client had committed the offence after the relationship had broken down and due to his intake of alcohol had little recollection of the threatening emails sent to his former partner. Sheriff Peter Paterson said he reviewed all the evidence as well as taking into consideration Robinson’s previous character when he ordered compensation as well as the non-harassment order.

Anne Marie Hicks, National Procurator Fiscal for Domestic Abuse in Scotland, states that she believes this conviction will send a clear message that this behaviour is unacceptable and those who threaten to disclose intimate images will be dealt with seriously. She goes on to describe this offence as a type of online domestic abuse which causes fear and distress and is often used to humiliate and control the victim. Moreover, Hicks highlights the general hope that this conviction provides reassurance to victims that they should not be embarrassed to report such crimes.

The president of the EFTA court, Carl Baudenbacher, is set to speak to Brexit legal specialists in Parliament next week to set out how the EFTA court could provide a solution to shape future relations between the UK and the EU. His proposal would involve the UK emulating Norway’s relationship with the EU.

The EFTA court is the equivalent of the European Court of Justice (ECJ) for Norway, Iceland and Liechtenstein who are part of the European Economic Area but not members of the EU. Three judges oversee the application of EEA law in these countries, each of which sends one judge.

Whilst taking care not to involve himself with an internal UK political dispute, Baudenbacher is keen to raise the understanding of how his court works and challenge the view it is simply a vehicle to implement decisions of the European Court of Justice – which Theresa May has pledged Britain will no longer follow in an attempt to regain national sovereignty. In a challenge to a UK position paper he argued that the paper failed to acknowledge the dialogue between the ECJ and EFTA and thus misunderstood the independence of EFTA from the ECJ.  

However, from a UK perspective the ‘Norway model’ does not include the positive changes that leave campaigners sought from Brexit. For example, the UK would have to accept EU rules without a direct or indirect vote on them and free movement of workers would remain a requirement – two of the major reasons given for the majority leave vote in the referendum in 2016. In addition, the UK has previously said that it would not join a court which worked in parallel with the ECJ rulings and instead wants to establish a UK arbitration court that considers ECJ jurisprudence. However, many legal experts say that there is not enough time to establish a new dispute mechanism before the UK is due to leave the EU in 2019. Labour MP, Stephen Kinnock suggests that the UK joining EFTA is at least the best compromise during the transition period.

However, politicians and European legal experts alike have concerns that joining EFTA would incur its own negotiation issues. Former head of EU Legal Services, Jean-Claude Piris, said it was not politically realistic to expect existing European Economic Area (EEA) members such as Norway to take the risk of opening difficult negotiations with the EU over the possibility of the UK joining EFTA as it could lead to them losing their current advantages.

Words: Alicia Gibson


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