Harry and Meghan's battle for privacy in Canada will be '10 times worse' than before

Prince Harry and Meghan Markle’s battle to keep their private lives out of the media spotlight has been made ‘ten times worse’ by their move to Canada, experts have warned.

The Duke and Duchess of Sussex Harry and Meghan are on Vancouver Island preparing to forge a financially independent new life for themselves and their eight-month-old son Archie, after stepping back from royal duties.

The Duke and Duchess of Sussex leaving after their visit to Canada House, central London, meeting with Canada's High Commissioner to the UK, Janice Charette, as well as staff to thank them for the warm hospitality and support they received during their recent stay in Canada.
Harry and Meghan have made things worse for their relationship with the media in their Canada move, a former royal editor has said. (PA Images)

However, within days of trying to set up their new life, the couple issued a legal warning to the media after various outlets published paparazzi shots of Meghan walking her dogs in a park on Vancouver Island with Archie.

Harry was also snapped within minutes of his plane touching down in Canada on Monday.

They have also claimed attempts have been made to picture them in their home with long range lenses and paparazzi have been permanently camped outside their home.

Privacy laws in the province of British Columbia mean that they could potentially sue if their photo is taken in a public place.

Duncan Larcombe, who worked as the Sun’s royal editor for more than a decade, said the move to Canada will not stop the pair from being photographed - adding that their deteriorating relationship with the press is making things worse for them.

Among the issues the Sussexes have created, he says, is withdrawing from the ‘royal rota’ system that previously gives them a direct line to royal correspondents, which could allow them to stop unwanted paparazzi photos appearing in the media.

He told Yahoo News UK: “By burning those bridges, all that goodwill that’s been bought up over the years - Harry has taken a sledgehammer to those agreements by saying they were hounded, the British public is racist, it is all awful, woe is me.

“Well that’s fine, but he now finds himself thousands of miles from the UK dealing with photographers who have absolutely no qualms about hiding in a bush and taking his photograph, or photos of Meghan out for a walk with Archie.

Britain's Prince Harry and Meghan, Duchess of Sussex, holding their son Archie, meet Anglican Archbishop Emeritus, Desmond Tutu and his wife Leah in Cape Town, South Africa,Wednesday, Sept. 25, 2019. The royal couple are on the third day of their African tour. (Henk Kruger/African News Agency via AP, Pool)
Harry, Meghan and baby Archie. (Henk Kruger/African News Agency via AP, Pool)

“They don’t care, why should they? As far as they’re concerned he’s just another famous face like Brad Pitt or George Clooney - there’s no royal factor whatsoever.

“Having burned all his bridges with the British royal (press) corps - well, who’s going to actually turn round and say ‘is it alright to run this picture or will it upset Harry’?

“It’s a two-way relationship that Harry’s walked out on.”

Legal differences

While British Columbia's lush landscape and mild climate likely helped lure the Sussexes to hunker down there indefinitely, the province’s privacy laws probably didn’t hurt either.

Markle’s lawyers filed a cease-and-desist to British media outlets this week, threatening legal action if they published photos of her taken recently while she was walking with her son and dogs on Vancouver Island.

Daniel Reid, a Vancouver-based lawyer at Harper Grey who specialises in privacy laws, says Markle would have an easier time going to court in British Columbia over privacy issues, than in most other parts of the country. That’s because since 1996, the province has enforced the Privacy Act, which allows people to sue for breach of privacy.

The act states that someone can sue for damages if they feel that their privacy is breached unreasonably.

The Duke and Duchess of Sussex during the annual WellChild Awards at the Royal Lancaster Hotel, London.
The Duke and Duchess of Sussex during the annual WellChild Awards at the Royal Lancaster Hotel, London. (PA Images)

“Just because someone’s a public figure or in a public space, doesn't mean that can’t have expectations of privacy,” he told Yahoo Canada. “The issue is what’s a reasonable expectation of privacy in the circumstances.”

The Duke and Duchess of Sussex may have a limited expectation of privacy in certain circumstances, especially if they’re attending public events. However, they may feel like their privacy is being breached if photographers are taking unauthorised photos of them on their property, or with a drone.

“It always turns on this idea of what’s reasonable in the circumstances,” Reid says.

He explains that B.C.’s Privacy Act makes an exception in some cases, like reporting on matters of public interest. However, that doesn’t apply if the matter being reported on is obtained in a way that violates privacy.

“Surveillance or eavesdropping can absolutely be a violation of privacy under the privacy act here in B.C.,” he says.

Most other provinces in the country don’t have a privacy act like in B.C. In Ontario, for example, you can sue for lack of privacy but through the common law, which is still developing the terms of what that means.

‘Pointless exercise’

Mark Stephens, a solicitor who specialises in media law and human rights at Howard Kennedy, says the royal couple’s international appeal will always make them targets.

Even if photos taken of them in Vancouver are not used by Canadian media, and if they manage to successfully convince British papers to not publish photos in what they deem to be private situations, there are still other countries with varying privacy laws that will allow the photographers and news outlets to profit.

Julian Assange's solicitor, Mark Stephens reads a statement outside the Royal Courts of Justice after Assange, was granted bail.
Mark Stephens said going for the British press is not the answer to Harry and Meghan's troubles. (PA Images)

“...There’s a much more broad market on the global level, so you can publish those images in Australia, South Africa, New Zealand, India, other major Commonwealth jurisdictions where there’s an interest in the family, but their privacy laws are not as robust or developed as they are in Europe or indeed in Canada.

“Until you solve the problem - the rather bellicose statements being sent by Harry and Meghan’s lawyers in London to British newspapers rather exacerbated the situation yesterday.

“...What they did is draw attention to the problem, rather than dealing with the fundamental of the problem, which is suing the photographers, the freelance paparazzi in Vancouver. They tried to threaten the British newspapers.

“But that was a pointless exercise because there are papers all over the world that would be quite happy to publish them, and websites.

“As a consequence of that you haven’t removed the economic incentive of the photographers to continuously take the images and sell them in places around the world, where they still can.”

He said unless the economic incentive for photographers is removed, or if successful legal action is taken against photographers, “then the problem will persist because they have something that they view rightly or wrongly as a commercial product which they will sell”.

Stephens said he believed the Sussexes have taken into account the Canadian media, which is “not as intrusive or celebrity focused as perhaps it is in the UK”, and said domestic press there are more likely to cover them when it is legitimately in the public interest.

Making a bad situation ten times worse

“The only thing that will stop the British press running those pictures like Meghan yesterday is public opinion,” Duncan says.

But even that, is not a guarantee.

“...History tells us even at the height of Princess Diana’s battles with the press members of the public were happy to say ‘Oh, they should leave her alone’ and then go out and buy Hello magazine, and let the sales of the tabloids soar every time she was put on the front page.

File photo dated 13/02/18 of the Duke and Duchess of Sussex during a reception for young people at the Palace of Holyroodhouse, in Edinburgh. The Duchess of Sussex has returned to Canada as the Queen and other senior royals took decisive action and ordered their teams to find a "workable solution" to Harry and Meghan's future roles.
Harry and Meghan may have made things worse as they try to get away from negative press headlines, Duncan Larcombe believes. (PA Images)

“So Harry cannot rely on the decision making of the British public because they are hypocritical.”

By extracting himself from past arrangements with the press - which the Sussexes feel have been to their detriment - the only action Harry can take is to “fire off legal letters and bleat about his privacy”, Duncan adds.

“The danger is that by going to Canada they have made a bad situation ten times worse.”

He said a system like the royal rota arrangement - which has allowed Prince William and Prince Harry to convince editors not to publish photos of their girlfriends that were obtained by paparazzi in the past - could have been used by Harry and Meghan when they arrived in Vancouver, had they stayed part of it.

That way, Harry could have accepted his arrival was newsworthy but had leverage with the press to prevent photography of the couple being an every day occurrence - and “that conversation should have been had with editors, not through lawyers”.

He pointed to pictures of Kate Middleton visiting a supermarket days after her wedding to William in 2011, which were published at the time.

The Duchess of Cambridge arrives for a visit to Ely & Caerau Children's Centre in Cardiff.
Mr Larcombe said the Royal Family could use arrangements with the media to prevent the Duchess of Cambridge being photographed whenever she left the house. (PA Images)

The palace was worried it would set a precedent of the Duchess of Cambridge being pictured every time she stepped out of the house, but when photographers tried to sell photos of her at a supermarket again, newspaper editors felt there was no news value in it.

He said that paparazzi photos of the royals are rejected “at least 70% of the time”. When they appear in the newsroom a call is put into the palace, where a discussion takes place as to whether it is acceptable to publish it.

“I hope for his sake he is able to realise his dream of being left alone but I can’t see how,” Duncan said.

“If I was advising him a few months ago, when he was mooting the idea, I’d say, ‘Harry, if you do that it’s not going to change a thing, it just means you’re going to have pine trees and a Canadian backdrop behind you rather than Windsor’, tragic though that is.”