12 Feb PRIVACY – MEGHAN GRANTED SUMMARY JUDGMENT IN PRIVACY CLAIM

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.