10 Feb 10 February 2023
In this issue of zoom-in brief, the Duke and Duchess of Sussex could be called to give testimony in a US defamation case brought by the Duchess’ half-sister; Donald Trump sues a reporter over claims he released interview recordings without his consent; three UK newspapers agree to pay a surgeon substantial damages after publishing defamatory articles about his work; whilst a long-awaited pilot scheme for family court reporting begins in England and Wales.
Defamation – US – Markle v Markle depositions to go ahead
On 3 February 2023, the estranged sister of the Duchess of Sussex, Samantha Markle, issued a claim in defamation and injurious falsehood in the Florida District Court against the Duchess for $75,000, over “demonstrably false and malicious statements” made in the tell-all Oprah interview on CBS in March 2021, and in the 2020 biography ‘Finding Freedom’.
The allegations sued upon include: the alleged misrepresentation that Samantha and the Duchess had no relationship growing up; that the Duchess was an “only child”; and the pursuance of a false “rags-to-royalty” narrative, which Samantha claims destroyed her and her father’s reputation and credibility.
Samantha, a famously outspoken critic of her sister, claims that, as a result of these allegations, she suffered “humiliation, shame and hatred on a worldwide scale”.
Samantha also requested that the Duchess and her husband, Prince Harry, be deposed (made to provide a formal testimony outside of the courtroom but under oath) and that the Duchess make various admissions, including that neither the late Queen Elizabeth II nor King Charles III are racist, and that Samantha – who is 17 years Meghan’s senior – regularly drove her to school.
She has also requested statements from others, including Thomas Markle (their father), Ashleigh Hale (her daughter), Jason Knauf (the couple’s former communication secretary), and Christopher Bouzy (a data expert who appeared in the couple’s recent Netflix documentary discussing the source of various abusive tweets directed at the couple).
The Duchess of Sussex hopes to dismiss the claim on the basis that it requires jurors to define what is meant by a “close relationship” and does not belong in any court.
She also applied to delay the depositions until the determination of her dismissal application. Her attorney, Michael J Kump, argued that Samantha’s demands were largely irrelevant to the claim, sought to justify some statements which the Duchess had not herself made and, of those that she did make, they were matters of opinion and “substantially true in any event”. However, this application was refused by judge Charlene Edwards Honeywell on 7 February.
The royal couple are therefore set to give depositions before the deadline of 3 July 2023. In dismissing the application, Judge Honeywell also commented that – although some of the claims were “ripe for dismissal” – her “preliminary peek” at the dismissal application did not indicate clearly that the claim would be dismissed in its entirety.
A mediator has been appointed to the case to seek to resolve matters without the need for a trial. Should negotiations fail, a jury trial is expected to take place in July 2024.
This is the latest in a string of claims involving the royal couple. The royal couple’s appetite for litigation has seen around eight claims being issued between them since 2019, including Prince Harry’s hacking claims against the UK media, his claim against the Home Office (and further claim against the British Government and Scotland Yard issued in August 2022) concerning the removal of his police protection, and the Duchess’ claim against the Mail for publishing sections of a letter she wrote to her father (which she won in February 2021).
Copyright – US – Donald Trump sues famed Washington Post reporter over release of interview recordings
Donald Trump is suing veteran Washington Post journalist Bob Woodward for nearly $50m, claiming that the reporter released audio from interviews with the former US president without his consent.
Trump’s lawsuit against Woodward, the publisher Simon & Schuster, and Simon & Schuster’s parent company Paramount Global, filed in the northern district of Florida at the end of January, concerns the audio book The Trump Tapes, a collection of 20 Woodward interviews with Trump conducted over 2019-2020, released in October 2022.
According to the lawsuit, Trump accepts that he agreed to Woodward recording their conversations for the purposes of a book. However, he claims that the agreement did not cover the use of the audio files in The Trump Tapes, and argues that the defendants’ “ongoing concerted efforts to profit off the protected audio recordings and the works they have distributed derived from the protected audio recordings have caused [him] to sustain substantial damages, necessitating the institution of this action”.
Trump is seeking just under $50m in damages on the basis of several different causes of action, including unjust enrichment, breach of contract, and violation of Florida trade law, as well as a declaration of his copyright interests in the recordings – several of which were made in the Oval Office. The lawsuit further alleges that one conversation with Trump was deceptively edited.
In a joint statement, Simon & Schuster and Woodward, who famously broke the Nixon-era Watergate scandal with fellow reporter Carl Bernstein, said that Trump’s claim was “without merit”, and pledged to “aggressively defend it”.
They said: “All these interviews were on the record and recorded with President Trump’s knowledge and agreement. Moreover, it is in the public interest to have this historical record in Trump’s own words. We are confident that the facts and the law are in our favour.”
Trump, who is starting to intensify his campaign for the Republican Party’s presidential nomination next year, is no stranger to suing media companies.
This latest lawsuit comes just weeks after a federal judge ordered Trump and one of his lawyers to pay nearly $1m in sanctions over a lawsuit brought against Hilary Clinton and several others contending that they had conspired against him in the 2016 US presidential election.
In the UK, copyright can exist in spoken words as soon as they are recorded in some form. Unless certain circumstances apply, the speaker owns the copyright, although the law permits journalists and broadcasters to use the speaker’s words if certain conditions are met. Securing an interviewee’s consent to the intended use of the recording prior to its being made – for instance, through a release form – is an important practical step to be able to take advantage of this exception.
Defamation – Sun, Mail and Mirror to pay surgeon “substantial damages” over defamatory “facelift” allegations
The publishers of the Sun, Mail Online and Mirror websites have agreed to pay substantial damages to a cosmetic surgeon after publishing defamatory articles about a patient’s “facelift”, the High Court was told this week.
A legal representative for Mr Sultan Hassan told Mr Justice Murray at a 6 February hearing in London that his client had been “seriously defamed” in a series of articles on the sites in August and September 2022.
News Group Newspapers Ltd had published an article headed “I got a £17k facelift after falling pregnant with twins at 51 but ended up looking like ET” on the Sun’s website. Associated Newspapers Ltd had published an article headed “Mother, 54, claims she looks like ‘E.T.’” on the Mail Online website. MGN Ltd had published an article on the Mirror website headed “Pregnant woman left looking like ET after facelift”.
Mr Hassan’s lawyer said the three publishers had accepted that they had published false and defamatory allegations about the surgeon, who has appeared on the Channel 4 TV series ‘Embarrassing Bodies’, and had agreed to pay Mr Hassan substantial compensation as part of a settlement agreement, as well as his legal costs.
Mr Hassan’s lawyer added that the articles had been based on false information obtained by the publishers from a news agency. He told the High Court that his client had performed an operation professionally and properly, and had been shocked and appalled by the allegations against him. He said the three publishers had taken down the articles shortly after solicitors representing Mr Hassan complained to them.
A barrister appearing for News Group, Associated and Mirror Group confirmed what Mr Hassan’s lawyer had told the Court, accepted that there was “no truth in the defamatory allegations”, and offered the publications’ sincere apologies to Mr Hassan.
UK – Pilot scheme for family court reporting begins in England and Wales
A long-awaited pilot scheme enabling journalists to report much more freely on proceedings in family courts has begun, in what the president of the family division, Sir Andrew McFarlane, says “marks the start of the judiciary’s ongoing work to make transparency in the family court a reality”.
Currently, hearings relating to family matters are generally held in private, meaning members of the public cannot attend. Accredited media representatives may be present, but there are very strict limits on what they can report.
Under the new pilot, which launched for a 12-month period at the end of January, accredited journalists and legal bloggers covering family court proceedings in Leeds, Cardiff and Carlisle maybe able not just to attend hearings, but to report publicly on what they see and hear.
The court will be able to issue a “transparency order” for each case, setting out what may be reported, potentially including the names of the local authorities involved in the matter.
Families mayalso be allowed to discuss their case with a journalist under the scheme, without risking being in contempt of court.
All reporting under the new pilot will still have to protect the anonymity of children, family members and other specified parties, unless the court orders otherwise, however.
The pilot is starting with public law cases, such as care order proceedings, and will then move on to include private law cases, like custody disputes.
Sir Andrew McFarlane said the pilot’s aim was to “understand the impact of open reporting and to enhance public confidence, whilst at the same time firmly protecting continued confidentiality”.
At a launch event last month, the president said there were nearly 250,000 cases heard in the family courts in England and Wales each year, and that while the issue of greater transparency had “sat in the too difficult box” for many years, the new reporting provisions were a “big change”.
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