In this issue of zoom-in brief ….The Duchess of Sussex is granted summary judgment in her privacy claim against the Mail on Sunday; Mariah Carey is sued by her sister; and Ofcom cracks down on broadcasters.

The Duchess of Sussex, Meghan Markle, has won a summary judgment in her widely reported privacy claim against the publishers of the Mail on Sunday and MailOnline.

The claim, against Associated Newspapers Limited (“ANL”), related to the publication by ANL of part of a letter the Duchess had written to her estranged father.

The 2019 articles had the headlines: “Revealed: The letter showing true tragedy of Meghan’s rift with a father she says has ‘broken her heart into a million pieces’” and “Meghan: Stop painful attacks on Harry; Her dad: I like him…. I’ll always love you”.

A 10-day trial had originally been listed for this year but in October 2020 the Duchess applied for summary judgment, which a Court can give where it finds that a party’s case has “no real prospect of success”.

That application was heard on 19 and 20 January 2021 and on Thursday 11 February 2021 the Court handed down its judgment, finding for the Duchess on the whole of her privacy claim, and parts of a copyright claim she was also pursuing against AML.

Mr Justice Warby held that the Duchess had a reasonable expectation of privacy in relation to the letter, which was not affected by her status and role, or the fact that the letter contained information about her father, Thomas Markle – even though he was someone who might disclose it – and it was potentially lawful to do so in the USA.

The judge found that the disclosures which the Duchess had made or was alleged to have made about the letter did not place so much information about it in the public domain that she lost any right to privacy in its contents.

Interestingly the judge decided that an intention to publish information at some future date does not deprive a person of a reasonable expectation of privacy in the relevant information in the meantime.

Having decided that the Duchess’ privacy rights were engaged, the judge went on to weigh them against the right of ANL and its readers to freedom of expression. He found that the letter did not contribute to a debate of public or general interest but identified the real issue as being whether the publication complained of might be justifiable for the purposes of correcting the record or preventing the public from being misled.

He determined that a separate article published in People magazine did portray the letter in a way that was inaccurate, and that would have justified some steps to ensure the true position was made known to those who had been misled.  But this did not make it necessary and proportionate to publish the bulk of the letter without notice to the Duchess, and so ANL’s disclosures taken as a whole were excessive and unlawful.

On the copyright claim the Judge held that the letter was the author’s own intellectual creation, ANL’s articles reproduced the majority of the substance of that intellectual creation, and therefore represented a substantial part of that creation.

He also rejected ANL’s attempts to rely on fair dealing, holding that it was not seriously arguable that the reproduction of the letter was for any of the purposes relied upon, the use was not fair, and publication was not in the public interest.

In the face of uncertainty as to whether the letter, which may have had input from a member of Kensington Palace staff, gave rise to a single copyright owned by the Duchess or to joint ownership, or to several copyrights (including one belonging to the Crown) the Judge found that those issues must go forward to a trial.

There is therefore some prospect of the litigation continuing.

In an emotional statement, the Duchess referred to ANL’s “illegal and dehumanizing practices” and suggested its publications were the opposite of the “reliable, fact-checked, high-quality news” the world needs.

ANL said it was surprised and disappointed by the outcome.

The ruling is certainly an encouraging one for privacy claimants and may make life more difficult for the media.

It indicates that there may be greater scope in the future for those who claim their privacy has been infringed to seek a ruling from the Court at an early stage, before needing to give disclosure or have their evidence tested at trial.

And it also suggests that an intention to make information public in the long term may not prevent a person controlling whether and how it is disclosed in the meantime.

In both of these ways, it is potentially a significant step in the development and recognition of privacy rights by the Courts in this country.

Singing superstar Mariah Carey is being sued in New York for $1.25m by her older sister Alison Carey, who says she has been caused “immense emotional distress” by  Mariah’s memoir ‘The Meaning of Mariah’.

In the book, which was published last September, the singer writes about growing up with her sister, who is 8 years older than her.

Alison Carey claims the book accuses her of giving Mariah Valium when she was 12, and throwing a cup of boiling tea on her causing third-degree burns. In the book Mariah also recounts going on a car ride with one of Alison’s boyfriends who she says was carrying a gun and claims Alison’s boyfriend tried to kiss Mariah.  Alison disputes the allegations.

In the lawsuit Alison states that Mariah presented no evidence to substantiate her claims, calling the allegations “outrageous” and Mariah’s behaviour “heartless, vicious, vindictive, despicable and totally unnecessary public humiliation”. She says Mariah published the book without giving her an opportunity to respond. The lawsuit also refers to Mariah “callously” dismissing Alison as her “ex” sister. In the book Mariah describes Alison as “brilliant and broken.”

Alison says that she was already struggling with trauma from her childhood, having suffered with PTSD, anxiety and depression for years and that she suffers from a traumatic brain injury after an attack during a break-in at her home in 2015. The lawsuit claims that, despite knowing her problems and that she is “penniless”, Mariah used her status as a public figure to make lurid claims and promote her book. Alison says that since the publication of the book she is depressed and “uncharacteristically tearful” and that she is now struggling with alcohol abuse again after being clean for a long time.

Alison is representing herself. Mariah has not yet commented on the lawsuit.

Mariah Carey was born in Huntingdon New York into a bi-racial family. In addition to her sister Alison, she has an older brother, Morgan. Mariah’s parents divorced when she was young. She is known for her five-octave vocal range and is one of the best-selling artists of all time. Her biggest hits include “Hero”, “Always Be My Baby” and perennial Christmas favourite “All I Want for Christmas is You”. ‘The Meaning of Mariah’ is the singer’s first memoir.

Ofcom has withdrawn the broadcasting licence of English language satellite news channel CGTN after it concluded that the licence holder, Star China Media Limited (SCML), did not have editorial responsibility for the channel’s output.

In the UK, broadcast licensees must have control over the service they provide and licence holders cannot be controlled by political bodies.

SCML had sought to transfer its licence to an entity called China Global Television Network Corporation (CGTNC) but Ofcom denied the application, finding that “CGTNC would be disqualified from holding a licence, as it is controlled by a body which is ultimately controlled by the Chinese Communist Party”.

It is rare for Ofcom to revoke a broadcasting licence but this decision shows that Ofcom will use these powers when deemed appropriate.

Another recent example of Ofcom sanctioning a licensee is the £50,000 fine it imposed on Khalsa Television Limited (KTV) for serious breaches of the broadcasting code.

KTV broadcasts a range of cultural, religious and educational programmes to the UK’s Sikh community.

Ofcom found that KTV had aired a music video on three separate occasions which indirectly encouraged Sikhs living in the UK to commit violence, including murder, against people opposed to the Khalistan Liberation Front. It also found that the music video contained subliminal harmful messages in an apparent attempt to influence viewers without them being aware.

Ofcom said a second investigation into the channel ‘‘found that a live discussion programme, Panthak Masle, featured a number of statements which were likely to incite crime or lead to disorder. This included material which amounted to implicit threats of violence towards Harnek Singh, a Sikh radio presenter living in New Zealand’’.

Ofcom concluded that these breaches were serious and warranted the imposition of a statutory sanction of £20,000 in respect of the music video and of £30,000 in respect of the discussion programme. In addition, Ofcom ordered that KTV must not repeat the music video or the discussion programme and must air a summary of the decisions on a date – and in a form – set by the regulator.

These decisions highlight some of the sanctions that Ofcom can impose on broadcasters when a serious breach is committed.

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