11 September 2020


In this issue of zoom-in brief, The Duke and Duchess of Sussex bring privacy claim over pictures of baby Archie; President Trump is sued by Eddy Grant over unlicensed use of Electric Avenue; and the journalist behind a Melania Trump article written for the Daily Telegraph will appeal in ‘defamatory apology’ claim.

S Buckley/Shutterstock.com
S Buckley/Shutterstock.com
Meghan and Harry bring claim over paparazzi pics of baby Archie

Privacy – Duke and Duchess of Sussex bring claim over pics of baby Archie

The Duke and Duchess of Sussex have been given permission to serve a privacy claim brought on behalf of their son Archie on the US arm of Splash News and Picture Agency.

The claim, which the Court allowed to be served in the US at a hearing on the 2nd of September, relates to long lens pictures taken earlier this year, which show the duchess walking with her son in a baby sling, and her two dogs, in Horth Hill Regional Park on Vancouver Island.

The couple, who are now based in Los Angeles and who were recently reported to have founded a yet-to-be-named production company and signed a multiyear deal with Netflix, say that they were “papped” without their consent, and that the photographs are a misuse of Archie’s private information and a breach of his data protection rights.

They have sued on Archie’s behalf as his “litigation friend”, bringing proceedings against the UK arm of Splash, and, now, against its US business.

Their barrister told the Court in London that the pictures were taken during “a private recreational outing on Vancouver Island”.

He said that, the day before the pictures were taken, the photographer was “at the private home of the claimants” and said he was “casing their home, testing his light meter and taking photos through the security fence, so he was not at the park by accident”.

He continued that Splash’s solicitors had suggested in correspondence that “the first claimant (Meghan) knew everything that was going on and was a volunteer in the sense that she carried on walking when she knew she was being photographed”.

The barrister said: “What happened immediately after the photographs were taken is that … they were immediately offered for worldwide syndication to the media and, what’s more, they were then snapped up, in particular by Associated Newspapers and News Group.”

He added: “That conduct, which is essentially the trading of the private information or the personal data, all took place here.”

Mr Barnes said this case was “not the first time” that Meghan, the Duchess of Sussex, had “crossed swords” with the defendants, referring to a previous case which he described as “the Cotswolds drone episode of January 2019”.

The claim joins the Duchess of Sussex’s privacy claim brought in her own right against the publisher of the Mail on Sunday, over a letter written to her father Thomas Markle, as another facet of the couple’s difficult relationship with the media.

The approach taken by the Court to photographs of children is more protective of their rights than that taken to photographs of adultsand underlines the special status that they have in the eyes of the law.

There is effectively no need for a child to rely on the surrounding circumstances to establish an expectation of privacy, and the fact that a photograph was taken without consent (unless the child is genuinely incidental) will usually be enough to establish a claim.


Copyright – President Trump sued by Eddy Grant over unlicensed use of ‘Electric Avenue’

Eddy Grant is the latest music star to sue the Trump campaign over unauthorised use of his 1982 song Electric Avenue.

The complaint, filed in the US District Court for the Southern District of New York, contends the president and his re-election campaign used the song without permission in a campaign video posted to the president’s Twitter account in mid-August.

The video, which was tweeted by the President, featured an animated train with his campaign logo speeding through a town while Joe Biden is pictured following slowly behind in a railroad handcar. Grant’s song plays throughout the duration of the video, which had more than13 million views before it was removed by Twitter.

There is no context for the use of the song, which plays as the animated Biden hand-pumps his way through the empty streets in a handcar labelled “Biden President: Your Hair Smells Terrific” while random snippets of old quotes and interviews are also played.

The track, written and performed by Grant, is based on the race riots which took place in Brixton, South London in the early 80s.

The lawsuit contends that President Trump’s re-election campaign “have infringed and continue to infringe [Grant’s] copyrights in the composition and the recording by creating, producing, distribution, promoting, advertising, performing by means of digital audiovisual transmission, and otherwise commercially exploiting the infringing video, and/or authorising others to do the same, without [Grant’s] authority or consent”.

Commenting on the infringement Grant said “In my particular case, they have sought to encapsulate my IP into derogatory political rhetoric, further encapsulated in a video production that can only be construed at best as being wicked, thereby causing me considerable emotional distress.”

Grant joins a list of musical stars who’ve called out the Trump campaign for unauthorised use of their music including Canadian band Nickelback and Heart of Gold singer Neil Young who filed a copyright infringement lawsuit against the Trump campaign in early August over unauthorised use of his music at Trump rallies.

Trump has yet to respond to this new lawsuit.

Defamation – Journalist will appeal in defamatory apology claim

A journalist who claimed that her reputation was damaged by an apology made by the Daily Telegraph to Melania Trump over an article she had written intends to appeal, after a Judge ruled against her at a preliminary hearing.

Nina Burleigh brought a claim against the newspaper following the publication on 19 January 2019 of a cover story which she wrote for the Telegraph’s Saturday magazine entitled “The mystery of Melania”, which was largely based on her book Golden Handcuffs: The Secret History of Trump’s Women.

A week after publication, on 26 January 2019, the newspaper published an apology explaining that it “had been asked to make clear that the article contained a number of false statements which we accept should not have been published”.

The apology identified a series of such statements and went on to apologise “unreservedly” and to say that the newspaper had paid substantial damages to Trump, along with her legal costs.

Burleigh brought a defamation claim, alleging that the apology meant that she “wrote a piece so littered with serious and defamatory falsehoods about Mrs Trump that it should not have been published”, while the newspaper responded that the article did not bear any meaning defamatory of the journalist.

The Judge decided that the apology by the newspaper did not defame Burleigh because it did not allege or imply “any culpable failure” on her part or any “want of skill or care”, and did not cross the required threshold of seriousness.

He pointed to the nature of the corrections which the newspaper said had been made as part of its apology, holding that these were not serious enough to suggest a fundamental failure on the part of the journalist, because they would strike the reader as being trivial or insubstantial.

Burleigh’s lawyer outlined her dissatisfaction with the ruling, saying that it was hard to understand how the apology did not reflect badly on her competence as a journalist and author.

“We believe this to be fundamentally wrong and intend to appeal,” he said.

“No journalist whose currency is the trust of editors and readers could suffer such a public repudiation of her work without cost to her professional reputation.

The facts of what happened to Ms Burleigh after the Telegraph’s retraction was published and republished around the world clearly demonstrate that it did in fact hurt her professional reputation.

We hope that the Court of Appeal will allow Ms Burleigh’s pursuit of vindication to continue.”

The Judge rejected the newspaper’s argument that the Courts should, for reasons of public policy, take a different approach to apologies to that taken to other publications, saying that it is “perfectly possible for published apologies to defame third parties”.

While this claim has been unsuccessful at this stage, the circumstances make clear both the care that needs to be taken in publishing an apology, and the risk that an effort to resolve one legal complaint may generate another.


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