French Court Detaches Itself From Reality, Demands Tabloid Turn Over 'Original' Topless Kate Middleton Photos

from the Google-Image-Search-ordered-to-destroy-all-negatives-in-its-possession dept

Wed, Sep 19th 2012 11:12am — Tim Cushing

In what has to be the most purely symbolic decision handed down by a court since King Solomon's derailing of a vexing child custody battle, a French court has ordered the tabloid that originally published the topless photos of Kate Middleton to perform an act of contrition that is actually more pointless than prosecuting this case itself:

The French magazine Closer, which published topless photos of the Duchess of Cambridge, must hand over the original pictures and pay a 10,000-euro ($13,000) fine each time the images are published again, a French court ruled.

The magazine, owned by the Berlusconi family’s Arnoldo Mondadori Editore Spa (MN), was sued after it printed a series of photos of the royal couple sunbathing on a private French estate. The tabloid was ordered to pay Kate 2,000 euros in expenses and an additional 10,000 euros each day it fails to turn over the original images.

Perhaps the judge (Judge Jean-Michel Hayat) spent the past few days enjoying some fine film noir, watching negatives go up in smoke in starkly lit ashtrays as the music rose and screen went soft focus momentarily as things, indeed, appeared to be working out for the troubled heroine. This explanation is as good as any for an order that completely ignores the reality of the situation. The picture is out there [indicates everywhere, but especially the internet] and no amount of fines or orders to produce the "originals" (on what? an SD card?) is putting those breasts back under proper British clothing.

It's not even a problem specific to the internet era. This wouldn't have flown 30 years ago when people had access to both newpapers and copiers. For that matter, this type of order has been outdated since the point photographs could be affixed to paper and distributed to readers/gawkers. You can't simply undo a mass distribution of "unapproved" photos. Not now. Not 30 years ago. Not 100 years ago. The photos are everywhere.

“Clearly, the harm has been done,” said Christopher Mesnooh, an American lawyer working in France for Field Fisher Waterhouse. “Thousands, now tens of thousands of copies, are now in public circulation. A legal decision is a wonderful thing to obtain and the royal couple did exactly what they should have done. But you know the magazine is out there and I suspect most of you have already seen copies of that magazine, so the basic, the initial harm, has been done.”

So, it all boils down to making sure the royal family is given some sort of... something for its "troubles." There will likely be more of these utterly disconnected decisions as the royal family may also pursue legal action in Italy and Ireland, not to mention pursuing criminal charges against the photographer. But I suppose it's a misguided (and amusing) effort to be doing something, especially considering the relationship between the royal family and its paparazzi has been anything but pleasant.

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Filed Under: france, kate middleton, photos, royal family

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Anonymous Coward, 19 Sep 2012 @ 11:20am

Ummm... is there a qualifier?
So the court also ordered the magazine to

"pay a 10,000-euro ($13,000) fine each time the images are published again"

BY THE MAGAZINE... I hope? They just didn't bother to print that part, right, I mean the judge clearly would not punish the magazine for republished works from this point forward, right? I mean, even if he did, clearly he limited to print right?

...Or did he just order a blank check that the internet can exploit to put this company out of business?
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DannyB (profile), 19 Sep 2012 @ 11:21am

> pay a 10,000-euro ($13,000) fine
> each time the images are published again

That might be nothing more than a minor cost of doing business.

Fire up the presses!

Asking for the "Original" photos to be turned over reminds me of Hillary Clinton asking WikiLeaks to "return" the documents taken from embassies. Do they have a clue how digital works?

Look, here is a pattern of bits: 10010110

Now here is a copy of it: 10010110

Quick! Which one is the original? In what way is the 1st one better than the second one? If I interchanged them, would the 2nd now be "better" than the 1st?
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Anonymous Coward, 19 Sep 2012 @ 11:23am

I don't know why courts aren't more imaginative.
If they find against a publisher who has published privacy invading photos of a third party then surely financial damages and being required to print photographs of themselves of equally embarassing or humiliating status and give them the same level of prominence in the publication as the illicit photos would be sufficient.
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Anonymous Coward, 19 Sep 2012 @ 11:25am

Already got 'em!
Yup... I've already got 'em... think I'll post them on my Facebook page... oh wait, I can't - that would violate Facebook's rules... damn!
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weneedhelp (profile), 19 Sep 2012 @ 11:27am

on what? an SD card?
Sure, here ya go, they are the originals.

Who could say different?
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Anonymous Coward, 19 Sep 2012 @ 11:30am

The fine may have been the real goal (would have been mine if I were in their shoes). The fine hurts the tabloid's bottom line; other tabloids will be discouraged from pulling similar stunts if they lose money from doing so.
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Anonymous Coward, 19 Sep 2012 @ 11:34am

On the other hand...
On the other hand... maybe that's the whole point of the ruling. Since there is no actual way of recovering the "originals", the magazine will simply have to keep paying 10,000 Euros every time the pictures are re-published until they're bankrupt.

Could be quite an effective deterrent to future publications.
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Ninja (profile), 19 Sep 2012 @ 11:39am

Re: Ummm... is there a qualifier?
Well, correct if I'm wrong but it belongs to the Fox group. Shall we call 4chan to put it out of business? ;D
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gorehound (profile), 19 Sep 2012 @ 11:43am

Pay a fine each time the images are published..............ha ha ha

That fine will end up being more than all the money in France making it the most expensive pictures ever mad in the history of France.
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Josef Anvil (profile), 19 Sep 2012 @ 11:43am

What about me?
Do I have to turn in my "originals" too?
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Anonymous Coward, 19 Sep 2012 @ 11:49am

They'll just never learn that they just highlighted this issue making it even bigger.
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Chris ODonnell (profile), 19 Sep 2012 @ 11:49am

I'm surprised that a French judge is not willing to surrender to reality.
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Anonymous Coward, 19 Sep 2012 @ 11:50am

They want the original? That's going to be tricky.

Assuming they used a Digital camera, the "original" existed for probably less than a second in the camera's video memory. Everything that comes after that - including the image that was stored in the camera's internal storage, or, most likely, an SD card - is, effectively, a copy.

Perhaps with some forensic techniques the "original" could be recovered...but I am imagining that, by now, it would be nearly impossible to do so. Not that anyone honest enough to admit it would care anyway. When someone puts things this way, they sound less interested in getting the orginals and more interested in burning someone else.
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Anonymous Coward, 19 Sep 2012 @ 11:50am

Re: on what? an SD card?
Doesn't matter that picture is already out on the internet its way to late to put the genie back in the bottle.
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TtfnJohn (profile), 19 Sep 2012 @ 11:53am

Re:
It may also eliminate the need for France to raise taxes for a few years!
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Yakko Warner (profile), 19 Sep 2012 @ 11:57am

Re: Already got 'em!
Only if her nipples are erect.

How cold was it the day those pictures were taken?
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Anonymous Coward, 19 Sep 2012 @ 12:08pm

What's the problem? Just fax them the originals and be done with it.
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Anonymous Coward, 19 Sep 2012 @ 12:19pm

also read a report that said we all need to respect peoples privacy. that has only come out because of what happened in this case. considering citizens have had/are having their privacy invaded on a regular basis by certain industries and governments, i am curious as to where the invasion will stop. i assume if you are rich and famous you will be safe. if you are an ordinary person, you will be hung out to dry at every opportunity even when having done nothing wrong. a bit like it is already, really
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Anonymous Coward, 19 Sep 2012 @ 12:20pm

Re:
Not really!
I think the fines are too small to deter a larger tabloid. In this case I am pretty sure Aller is just playing the numbers: Sure, a fine of 10000 � is bad, but if you earn 2 � per reader, you only need 5000 people more than usual to buy the magazine to make it worth it! Sure, you can add some more costs making it maybe 20000 � in total for the photos, but 10000 extra readers is so easy to obtain. Even in small markets like Denmark and Sweden!
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Kev (profile), 19 Sep 2012 @ 12:35pm

No problem!
All the publisher needs to do is turn the copyright industry loose on the internet. Surely all the revenue generated from the ensuing infringement lawsuits will more than cover the cost of the fines.
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Rekrul, 19 Sep 2012 @ 12:50pm

Here's a thought: Maybe people shouldn't take their clothes off in places that can be seen by the public.

Or maybe people shouldn't be so uptight about nudity.
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Anonymous Coward, 19 Sep 2012 @ 12:59pm

Maybe...
Maybe she should just do a Playboy spread, then there'd be no market for grainy tele-photo shots that could just as well have been any vaguely similar look-alike.
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Anonymous Coward, 19 Sep 2012 @ 1:03pm

Re:
She was on a private villa, 1/2 a mile from the road, surrounded by woods. How much more private can you get?
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Josh in CharlotteNC (profile), 19 Sep 2012 @ 1:04pm

Re: Maybe...
And she would have gotten a lot more out of it than 2000 euros.
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Beta (profile), 19 Sep 2012 @ 1:17pm

counterintelligence
If we're talking about countermeasures, I don't think it would cost too much to

1) hire a double to saunter around in a thong for the afternoon,
2) wait until the photos hit the newsstands, then
3) reveal the deception, thereby destroying the reputation (and I use the term loosely) of the tabloid in the tiny minds of the readers who for some reason actually care about this stuff.
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Anonymous Coward, 19 Sep 2012 @ 1:19pm

Re:
I like 2, but everytime i try they make me put the clothes back on...
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Jeff_Vader_runs_the_Deathstar? (profile), 19 Sep 2012 @ 1:22pm

Re:
If this doesn't make the Sunday edition there is no justice...
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Anonymous Coward, 19 Sep 2012 @ 1:55pm

Re: Re:
She should have been wearing a burqa. Problem solved.
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Anonymous Coward, 19 Sep 2012 @ 1:57pm

Tits or GTFO.
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Lisa Westveld (profile), 19 Sep 2012 @ 2:19pm

Copyright...
Actually, transferring the "original pictures" does make a lot of sense, since it would also transfer any copyrights on those images. With the originals now owned by the Royal family, they can stop any other usage of those images with an infringement claim...

Too bad the magazine wasn't the owner, and thus could not transfer the original license, just the license of what they've done to those images. Basically, they just got a license from the original photographer to create a derived work (which was already published) and then stop any further publishing of this derived work.

It's not a matter of owning the negatives or whatever. It's about owning the rights on those images.
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Jeff, 19 Sep 2012 @ 2:28pm

Re: Re:
Clearly it was not private enough.
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zegota (profile), 19 Sep 2012 @ 2:41pm

Damned insensitive
Obviously the decision regarding the "original" photos is silly. But I'm not a fan of your dismissive attitude about the whole affair, particularly the legal actions taken. No one has the right to film me in my private, intimate space and then publish those pictures. That's a huge invasion of privacy, both legally and morally, and it's not a matter of being uncomfortable with nudity or anything other commenters have implied. Somehow, I doubt y'all would be so nonchalant if you found a camera that had been placed in your bathroom (or your child's bathroom) by a repair tech or something.
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harbingerofdoom (profile), 19 Sep 2012 @ 3:14pm

Re: Re: Ummm... is there a qualifier?
boobs or take down something belonging to fox.... hrmm..

i think that would make the average /b/tards brain go asplody
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Anonymous Coward, 19 Sep 2012 @ 3:27pm

Make 'em All Naked
I think that if you're going to be a high profile person the first thing that you gotta do is get naked, have your photo taken and put it online.
You know if you don't, someone will. Just get it over with.That way you can have a professional present you in the best possible way and you can call it art and you get to keep the "originals".
Then no one will be shocked by your nakedness.

Then Maybe, just maybe, people will develop a ho hum attitude about celebrity nudity.("not another naked photo! Don't they have anything else they can take pictures of?)
The paparazzi will have nothing to go after and hopefully will become extinct.(Well, one can always hope!)

What! You got a better idea? (beside shooting predatory photo-stalkers)
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Anonymous Coward, 19 Sep 2012 @ 4:05pm

Re: Re:
With today's lens equipment and high resolution digital SLRs, the photographer could have been 1 to 2 miles away and still gotten pictures. A 600mm or 800mm lens provides an impressive amount of magnification with little effort. Even a 400mm lens with a 2x extender can work. Put that extender on a 600mm or 800mm lens and you can really get up close.

In short, assume you will be seen if you are famous and are outside. Keep your clothes on.
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Anonymous Coward, 19 Sep 2012 @ 4:28pm

Re: Damned insensitive
Well, if there was a camera in the bathroom, that would be a clear violation of privacy. It's like the attractive ESPN sports reporter who was secretly filmed nude in her hotel room. I'm sure she felt, like most everyone else, that a hotel room with closed and locked door and shades drawn was private. There's little chance she could have known that someone set her up to secretly film her. The man responsible for that was prosecuted for his actions.

But Kate wasn't in her bathroom or inside her hotel room. No, she was sitting on her balcony outside in clear view of anyone who could see the balcony.

So many celebrities want to parade themselves around in public, oftentimes sans clothes, and then are shocked and outraged when the public actually looks at them and takes pictures.

I'm not defending the magazine for publishing the pictures. I'm merely stating that if these people think they can get away with parading around outside nude in public and not being seen or photographed, they are sadly mistaken.
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Anonymous Coward, 19 Sep 2012 @ 6:13pm

Tim your an idiot, do you honestly believe all this action are about THESE pictures ???? DO YOU ???

thats why I rightly call you an idiot, it's not at all about these pictures, it's about the NEXT pics that are NOT taken because the person who did not take them has noticed what happened that LAST time someone published pictures like the ones that this mag published.

So if you are stupid enough to think they have taken this action to stop specificially JUST these pics your an idiot..

no, it's about the next pics, and the ones after that..

If the Royals did nothing, then other mags would have started to post either those particular pics, or similar pics..

now they will think twice, 3 times, and not do it in the first place... (it's just not worth prison time)...

can you not think at least a few minutes into the future, weeks or months .. seconds ??

someone missed the 'big picture' here, but being 'techdirt' that is SNAFU... seems the writers of TD cannot see or conceive of any events that may or may not occur at any time in the FUTURE.. (it's often called "cause and effect")..

Do you think that magazine after being told they cannot publish those photo's, they will just go out and take new ones and publish them, (of the royals) ????
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Anonymous Coward, 19 Sep 2012 @ 6:22pm

Re: Re: Damned insensitive
dont have a clue do you !!!

have you seen where the closes public area to their house is, and how far away from the house it is ??

it's about 4 miles away, the building is a spec in the distance at the CLOSEST location to the building, you would not be able to get that pic even if you had the KECK telescope as your lens..

NO it is clear that the person taking that photo was ON THE PROPERTY !!!

This is NOT a case of a celebrity parading in 'public' at all. This was someone miles away from a public place on a large property, that someone tresspassed on the take the picture..

just as if someone hid a camera in a hotel room..

why are you guys SO badly informed ??
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Anonymous Coward, 19 Sep 2012 @ 6:44pm

Re:
I am pretty sure that the magazines don't care about a 15000 � slap on the wrist as you can read on the first link Tim provided. The publicity they get from bringing those photos are worth so much more!

The only way to discourage this in the future is by putting the photographer in the hole for a very long time! With the way media protects their sources today, it is pretty unlikely that will happen either. As for the 2000 � each day it would seem like a punishment only meant for the magazine. If it is not, it could end up being interesting, but since proportionality is a part of the principles behind EU laws, I highly doubt it...
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Anonymous Coward, 19 Sep 2012 @ 6:56pm

Re: Re:
That is 10000 � per day, but I still see it as a small price and destroying the originals after the photos having been posted for so long is completely pointless... It is certainly not gonna be worthwhile unless the police catches the photographer in delivering the originals and the police gains some evidence of foul play by the photographer.
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Anonymous Coward, 19 Sep 2012 @ 7:15pm

Re: Re: Re: Damned insensitive
I very much have a clue.

Perhaps you missed the part where I said that I wasn't defending the magazine. The paparazzi is horrible. They very clearly hound celebrities and public figures endlessly and mercilessly. If they were trespassing to get the pictures, they should be prosecuted.

But, that doesn't change the fact that Kate was purposefully outside nude.

It doesn't matter if she was outside on public or private land. It doesn't matter if she was outside in the middle of the desert or the middle of the rain forest.

Outside is public. And if you don't want your squishy bits revealed for all the world to see, keep your clothes on unless you're behind closed doors. And especially if you're one of the most photographed women on the planet.

The paparazzi go to insane lengths to get pictures. There is nothing sacred with them. There is virtually no rule they won't break to get the pictures. Consequently all celebrities and public figures must alter their behavior to avoid such issues as this.

This means not taking ones clothes off outside. Ever.
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Anonymous Coward, 19 Sep 2012 @ 8:09pm

Re: Re: Re: Re: Damned insensitive
Yes, but the thing is, we Brits LIKE taking our clothes off outside!
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Anonymous Coward, 19 Sep 2012 @ 8:46pm

Re: Re: Re: Re: Re: Damned insensitive
Well, the more power to ya. Actually, I always thought of that as more of a French thing.
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lolzzzzz, 19 Sep 2012 @ 9:43pm

and the award for most stupid person goes to....
KATE MIDDLETON
whom should have known better then to streak in france at some beack private or not....no really lady you deserve this....
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DM, 19 Sep 2012 @ 10:51pm

technicality
Oh dear. It seems that quite a few people don't understand how these kind of magazines operate, at least in France.

These magazines have a budget for paying damages and lawyers' fees (I believe the �10000 are damages, not fine, but hey it's not like TechDirt articles were legally precise). If you're curious, purchase one of them, you're likely to see at some point some very bland and official text saying that the magazine was sued for infringing on somebody's private life and was ordered to pay damages and print the ruling inside the magazine (and sometimes on the cover, if the infringing pictures were printed on the cover). This is a NORMAL way of operating for them.

Regarding the originals, the article makes it sound like the judge is some kind of simpleton, or still lives in the 1950s. I rather suspect this is a matter of legal technicality:
* The magazine must be proposed with a way to make the trouble cease "in good faith" (hand over all "originals" and data for this picture and stop printing it).
* The magazine must be presented with punishing damages should it reiterate its infringement.

If you believe this is stupid, I invite you to read legal rulings in your own country; most likely they try to shoehorn current situations into century-old case law, and they contain technicalities because they have to.
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Anonymous Coward, 20 Sep 2012 @ 1:53am

Re: technicality
anyone who owns a modern DSLR camera will fully understand that the .RAW images are embedded with specific information regarding the camera that took the picture, the time and date. This file is what would be considered the originals.

you cant really fake that embedded information which also contains the serial number of the camera that took it.. so in fact there IS ORIGINAL files that can be retreived..

so I would say the judge has more knowledge of these issues than most of the people here at TD !!!..
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Anonymous Coward, 20 Sep 2012 @ 1:57am

Re: Re: technicality
it also means if you gain the original image (file) you get the identity of the person who took the photograph..

(via the S/N of the camera)
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Verbatiam, 20 Sep 2012 @ 5:39am

Re:
I think that would fall under cruel and unusual punishment
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Some Other AC (profile), 20 Sep 2012 @ 6:10am

Re: Re: Re: Damned insensitive
And you are a technologically illiterate moron! See comments from the person you are attempting to refute:

"Anonymous Coward, Sep 19th, 2012 @ 4:05pm

With today's lens equipment and high resolution digital SLRs, the photographer could have been 1 to 2 miles away and still gotten pictures. A 600mm or 800mm lens provides an impressive amount of magnification with little effort. Even a 400mm lens with a 2x extender can work. Put that extender on a 600mm or 800mm lens and you can really get up close."

At an assumed distance of 4 miles, most any reasonably price telescope purchased from hobby or enthusiast store would have given exceptional clarity. Reasonably priced means around 400-600 dollars. Now take a professional(only in the case that he/she is experienced in the use of the equipment, not in their behavior) photographer who likely has Thousand of dollars/euros invested in their equipment and you have a person who from a 2 to 4 mile distance can capture relatively decent photos without breaking a sweat.
Hell with my Sony point and shoot, I can sit in the outfield at the local MLB baseball field and tell if the Catcher shaved and if he did if he nicked his face.
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Wally (profile), 20 Sep 2012 @ 7:53am

Quite reasonable
Tim Cushing, all I can say is that this is a case of invasion of privacy, not freedom of press. Closer has the originals and they got spread everywhere. The ruling only pertains to new publication of the photos. So please let's all not confuse invasion of privacy or intrusion upon somone's life with giving a well thought out report about who that person is or what they're doing here.
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nasch (profile), 20 Sep 2012 @ 8:04am

Re: Copyright...
Transferring the photos (even the "originals", if there were such a thing) would not transfer the copyright to them.
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nasch (profile), 20 Sep 2012 @ 8:16am

Re: Re: technicality
What makes you think metadata can't be altered?
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