The High Court of Justice: It was a significant victory for the Duchess of Sussex and noted actress Meghan Markle when the Court ruled in her favour while deliberating on the question that whether Associated Newspapers misused her private information and committed breach of her data protection rights with regards to the Letter to her father. It was held that the Duchess had a reasonable expectation that the contents of the Letter would remain private and that The Mail Articles interfered with that reasonable expectation.
The British Royals have a complicated relationship with the media especially tabloids and the instant case is one such example.
The claimant Meghan Markle, married HRH Prince Henry of Wales on 19th May, 2018. Being a high profile couple, they were consistently under media lens. It was reported that the relationship between the claimant and her father, Thomas Markle, was difficult and 3 months after the wedding, the claimant sent her father a five-page letter (hereinafter ‘the Letter’). In September 2018, Mr. Markle sent a letter in reply. The existence of the Letter first became public on 6th February, 2019, when it was mentioned in an eight-page article that appeared in the US magazine People under the headline “The Truth About Meghan – Her best friends break their silence”. Mr. Markle then provided the defendant with the Letter, or a copy of it. On 9 February 2019, the defendant published in hard copy and online the five articles of which the claimant complains (“the Mail Articles”). These articles quoted extensively from the Letter, under headlines the gist of which is conveyed by the one across pages 4 and 5 of the Mail on Sunday: “Revealed: the letter showing true tragedy of Meghan’s rift with a father she says has ‘broken her heart into a million pieces’”.
The instant action arose from the later reproduction of large parts of the claimant’s Letter in articles published by the defendant in the Mail on Sunday and on Mail Online (hereinafter ‘the Mail Articles’).
- The contents of the Letter were private; this was correspondence about her private and family life, not her public profile or her work.
- The Letter disclosed her intimate thoughts and feelings; these were personal matters, not matters of legitimate public interest; she enjoyed a reasonable expectation that the contents would remain private and not be published to the world at large by a national newspaper.
- The defendant’s conduct in publishing the contents of the letter was a misuse of her private information.
- The Letter is an original literary work in which copyright subsists; she is the author of that work, and of a draft she created on her phone (Electronic Draft); and the Mail Articles infringed her copyright by reproducing them in a material form, and issuing and communicating to the public, copies of a substantial part of the Electronic Draft and/or the Letter.
The Defendant: The defendant while denying the claim made the following submissions-
- The claimant’s right to privacy is limited given the rightful public interest in the activities of the Royal family and the claimant’s status as a “high-ranking member” of that family.
- The article that was published in the US Magazine People, gave a misleading account of the father-daughter relationship, ‘the Letter’ and Mr. Markle’s response, such that (in all the circumstances) public disclosure of the contents of the Letter in the Mail Articles was justified to protect the rights and interests of Mr. Markle and the public at large.
- It was further contended that the claimant intended the Letter to be publicised, and to that end disclosed information about it to the “best friends” quoted in the People Article.
- Regarding the allegation of copyright infringement, the defendant questioned the claim of originality, subsistence of copyright etc. and relied on the defences of fair dealing and public interest.
The instant application was filed under R. 3.4(2)(a) and R. 24.2 of the Civil Procedure Rules which allows the Court to give summary judgment against a defendant on the whole of a claim, or on a particular issue, if it considers that- the defendant has no real prospect of successfully defending the claim or issue; and there is no other compelling reason why the case or issue should be disposed off at a trial.
Observations and Decision
Mark Warby, J., while considering the merits of the instant case, identified certain essential legal principles –
- The Human Rights Act, 1998 obliges the Court to interpret, apply and develop English law in conformity with the European Convention on Human Rights (hereinafter, the Convention). Where an individual complains that their privacy has been violated by newspaper reports, the Court must ensure that its decision properly reconciles the competing Convention rights. The Domestic Law gives effect to this framework through the ‘Tort of misuse of Private Information’.
- In the aforementioned Tort, the liability is to be determined by applying a 2 Stage Test– at Stage 1 the question is whether the claimant enjoyed a reasonable expectation of privacy in respect of the information in question; and, at Stage 2, the question is whether in all the circumstances the privacy rights of the claimant must yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences.
It was observed that the defendant publisher is bound by the Editors’ Code of Conduct enforced by the Independent Press Standards Organisation (IPSO) and the Court is obliged to regard the Code. The Court scrutinized the facts, the Letter in question and the events surrounding the controversial publication of the Letter. The aforementioned 2-Stage Test was applied to the facts-
Stage 1- Reasonable expectation of privacy: It was noted by Warby, J., that there are tow main issue in this Stage- firstly, whether the Defence sets out any case which, (assuming it to be true) would provide a reasonable basis for finding that there, no reasonable expectation of privacy; secondly, whether the defendant has any realistic prospect of successfully defending this issue at trial. Answering both the questions in negative, the Judge observed that, “Nothing that the defendant has pleaded in answer to this part of the claimant’s case provides any reasonable basis for defending the issue. I also consider that there is no real prospect of the Court concluding after a trial that, at the time the Mail Articles were published, or at any material time between then and now, the contents of the Letter were not private, or that the claimant did not enjoy a reasonable expectation that they would remain private”. The Judge explained that he is aware that the defendant’s case has its own complexities and subtleties, “But in reality, there is much that is plain and obvious”.
It was noted that the detailed contents of the Letter had entered the public domain by the time of the publication complained of, however, the People Article had disclosed the existence of the Letter, and provided a broad description, but not its detailed contents. The Court also noted that the claimant being a member of the British Royal Family is a public figure about whom much had been and continued to be written and published, but the nature of the “activity” in which she had engaged was not an aspect of her public role or functions. It was further noted that the Letter fell within the scope of Article 8 of the Convention as “correspondence” that contains matter relating to the “family life” of the claimant and her father. It was therefore concluded that, “the claimant would be bound to win at trial on this issue. It is fanciful to think otherwise”.
Stage 2- Balance between Privacy and Freedom of Expression: It was observed that in some aspects the defendant’s case is legally flimsy. Given the claimant’s status as a public figure ‘be bound to weigh heavily in the balance’ between privacy and freedom of expression. The Court noted that the defendant’s argument about the claimant having a limited right to privacy, echoes “the crude common law principle, enunciated long-ago, but since discarded, that those who seek favourable publicity somehow waive their rights, and must accept adverse publicity”.
Upon detailed perusal of the defendant’s arguments, the Court concluded that the claimant had a reasonable expectation that the contents of the Letter would remain private. The Mail Articles interfered with that reasonable expectation. The only reasonable justification for any such interference was to correct some inaccuracies about the Letter contained in the People Article. Warby, J., further noted that, “Taken as a whole the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy”.
Issue of Copyright Infringement
The instant case also raised the matter of the claimant’s copyright infringement vis-à-vis reproduction of the ‘electronic draft’ of the Letter in material form. Regarding this matter the Court observed that, the Mail Articles proceeded on the basis that the wording of the Letter was entirely the work of the claimant. The Court stated that ‘originality’ is a key matter of consideration in this issue and to satisfy the requirement of originality; a work need not be novel or ingenious. The defendant denies that the works relied on in this case are original, asserting that the Electronic Draft and Letter are “primarily an admonishment” of Mr Markle by the claimant. Noting that it was not easy to identify the precise nature of the defendant’s argument especially when they ignored that there is of course no copyright in news, but copyright has been recognised as subsisting in the literary form of a news report. Warby, J., states that, “The defendant’s case is not that the works relied on did recite pre-existing facts. The defendant pleads that they “purported” to do so. In its pleading, it adopts an agnostic stance. If the burden of proof lies on the defendant, then its case must fail”. The Court concluded that Electronic Draft is and would inevitably be held to be the product of intellectual creativity sufficient to render it original in the relevant sense. The Court concluded that, the Mail Articles copied a substantial part of the work. It is undeniable that they reproduced a substantial part in qualitative terms and in the sense that they reproduced a substantial part of “that which is the author’s own intellectual creation”. Warby, J., pointed out that, “The defendant’s factual and legal case on this issue both seems to me to occupy the shadowland between improbability and unreality”. He was however persuaded that there should be a trial limited to issues relating to the ownership of copyright.[HRH The Duchess of Sussex v. Associated Newspapers Ltd.,  EWHC 273 (Ch), decided on 11-02-2021]
Sucheta Sarkar, Editorial Assistant has put this story together